Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration Statement 181 972K
2: EX-1.1 Purchase Agreement 93 331K
3: EX-3.1 Certificate of Formation 1 22K
12: EX-3.10 Amended and Restated Operating Agreement 11 53K
13: EX-3.11 Articles of Organization 3 27K
14: EX-3.12 Certificate of Amendment of the Art. of Org. 2 25K
15: EX-3.13 Operating Agreement 14 59K
4: EX-3.2 Limited Liability Company Agreement 5 40K
5: EX-3.3 Certificate of Incorporation 2 25K
6: EX-3.4 By-Laws 15 81K
7: EX-3.5 Amended and Restated Articles of Organization 3 28K
8: EX-3.6 Operating Agreement 14 68K
9: EX-3.7 Certificate of Formation 3 27K
10: EX-3.8 Certificate of Amendment to Certif. of Formation 3 25K
11: EX-3.9 Certificate of Amendment to Certif. of Formation 4 27K
16: EX-4.1 Indenture 106 405K
25: EX-4.10 Deed of Trust 44 160K
26: EX-4.11 Intercreditor Agreement 15 75K
27: EX-4.12 Loan and Security Agreement 98 386K
28: EX-4.13 General Continuing Guaranty 11 57K
29: EX-4.14 Guarantor Security Agreement 17 76K
30: EX-4.15 First Preferred Vessel Mortgage 16 79K
31: EX-4.16 Deed of Trust 51 193K
32: EX-4.17 Deed of Trust 56 214K
33: EX-4.18 Deed of Trust 51 181K
34: EX-4.19 Stock Pledge Agreement 15 67K
17: EX-4.2 Registration Rights Agreement 37 126K
35: EX-4.20 Guarantor Trademark Security Agreement 12 54K
36: EX-4.21 Subordination of First Referred Vessel Mortgage 2 27K
37: EX-4.22 Subordination Agreement 7 38K
38: EX-4.23 Subordination Agreement 7 38K
39: EX-4.24 Subordination Agreement 8 38K
18: EX-4.3 Guarantee 2 25K
19: EX-4.4 Pledge and Security Agreement 48 186K
20: EX-4.5 Pledge Agreement 23 110K
21: EX-4.6 Trademark Security Agreement 4 31K
22: EX-4.7 First Preferred Vessel Mortgage 22 97K
23: EX-4.8 Deed of Trust 47 165K
24: EX-4.9 Deed of Trust 50 175K
40: EX-5.1 Opinion of Latham & Watkins 3 30K
41: EX-5.2 Opinion of Schreck Brignone Godfrey 2 27K
42: EX-5.3 Opinion of Watkins Ludlam Winter & Stennis, P.A. 3 30K
43: EX-5.4 Opinion of Robinson Waters & O'Dorisio 2 27K
44: EX-10.1 Employment Agreement 1 24K
58: EX-10.10 Lease Agreement 17 60K
59: EX-10.10.1 Amendment to Lease Agreement 7 39K
68: EX-10.10.10 Second Amendment to Masonic Ground Lease 7 38K
69: EX-10.10.11 Lease Agreement and Estoppel Certificate 17 65K
70: EX-10.10.12 Assignment of Ground Lease 10 45K
60: EX-10.10.2 Assignment 7 36K
61: EX-10.10.3 Supplemental Agreement 3 28K
62: EX-10.10.4 Assignment 7 36K
63: EX-10.10.5 Assignment 4 32K
64: EX-10.10.6 Articles of Amendment 11 47K
65: EX-10.10.7 Assignment 5 30K
66: EX-10.10.8 Amendment to Masonic Lodge Ground Lease 21 73K
67: EX-10.10.9 Lease Agreement 11 49K
71: EX-10.11 Lease 16 52K
72: EX-10.11.1 Amendments to Ham Ground Lease 23 77K
73: EX-10.11.2 Lease Agreement 6 39K
74: EX-10.11.3 Second Amendment to Ham Ground Lease 12 49K
75: EX-10.11.4 Assignment of Ground Lease 10 43K
76: EX-10.12 Agreement Regarding Ground Leases 8 36K
77: EX-10.13 Agreement Regarding Ground Leases 6 34K
45: EX-10.2 Employment Agreement 8 51K
46: EX-10.3 Amended and Restated Management Agreement 6 38K
47: EX-10.4 Expense Reimbursement Agreement 3 28K
48: EX-10.5 Member Agreement 7 42K
49: EX-10.6 Assignment of Membership 1 23K
50: EX-10.7 Contribution and Assignment Agreement 3 28K
51: EX-10.8 Lease Agreement 37 90K
52: EX-10.8.1 Assigment of Ground Lease 7 35K
53: EX-10.9 Lease Agreement 27 75K
54: EX-10.9.1 Amendment to Kramer Ground Lease 20 66K
55: EX-10.9.2 Lease Amendment 10 47K
56: EX-10.9.3 Second Amendment to the Kramer Ground Lease 6 37K
57: EX-10.9.4 Assignment of Ground Lease 11 43K
78: EX-12.1 Computation of Ratio of Earnings to Fixed Charges 1 22K
79: EX-21.1 List of Subsidiaries 1 21K
80: EX-23.5 Consent of Pricewaterhousecoopers LLP 1 22K
81: EX-23.6 Consent of Deloitte & Touche LLP 1 23K
82: EX-25.1 Statement of Eligibility 6 36K
83: EX-99.1 Form of Letter of Transmittal 11 76K
84: EX-99.2 Form of Notice of Guaranteed Delivery 5 37K
85: EX-99.3 Form of Letter to Dtc Participants 2 25K
86: EX-99.4 Form of Letter to Beneficial Owners 4 30K
87: EX-99.5 Guidelines for Cert. of Taxpayer Id Number 4± 32K
88: EX-99.6 Form of Exchange Agent Agreement 10 47K
EX-4.13 — General Continuing Guaranty
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Exhibit 4.13
GENERAL CONTINUING GUARANTY
(GUARANTORS)
THIS GENERAL CONTINUING GUARANTY (this "Guaranty"), dated as
of December 6, 2001, is executed and delivered by MAJESTIC INVESTOR HOLDINGS,
LLC, a Delaware limited liability company ("Parent"), MAJESTIC INVESTOR CAPITAL
CORP., a Delaware corporation ("MICC"), BARDEN NEVADA GAMING, LLC, a Nevada
limited liability company ("BNG"), BARDEN COLORADO GAMING, LLC, a Colorado
limited liability company ("BCG"), BARDEN MISSISSIPPI GAMING, LLC, a Mississippi
limited liability company ("BMG") (Parent, MICC, BNG, BCG, and BMG are referred
to hereinafter each individually as a "Guarantor," and individually and
collectively, jointly and severally, as the "Guarantors"), in favor of FOOTHILL
CAPITAL CORPORATION, a California corporation ("Lender"), in light of the
following:
WHEREAS, BNG, BCG, BMG (BNG, BCG, and BMG are referred to
hereinafter each individually as a "Borrower," and individually and
collectively, jointly and severally, as the "Borrowers") and Lender are,
contemporaneously herewith, entering into that certain Loan and Security
Agreement of even date herewith (as amended, restated, modified, renewed or
extended from time to time, the "Loan Agreement"); and
WHEREAS, in order to induce Lender to extend financial
accommodations to the Borrowers pursuant to the Loan Agreement, and in
consideration thereof, and in consideration of any loans or other financial
accommodations heretofore or hereafter extended by Lender to any Borrower,
whether pursuant to the Loan Agreement or otherwise, each of the Guarantors has
agreed to guaranty the Guarantied Obligations.
NOW, THEREFORE, in consideration of the foregoing, each
Guarantor hereby agrees in favor of Lender, as follows:
1. Definitions and Construction.
(a) Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the Loan
Agreement. The following terms, as used in this Guaranty, shall have the
following meanings:
"BCG" shall have the meaning ascribed to such term in
the preamble of this Guaranty.
"BMG" shall have the meaning ascribed to such term in
the preamble of this Guaranty.
"BNG" shall have the meaning ascribed to such term in
the preamble of this Guaranty.
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"Borrower" and "Borrowers" shall have the meaning
ascribed to such terms in the recitals of this Guaranty.
"Debtors" shall mean, individually and collectively,
jointly and severally, the Borrowers and the Guarantors, and "Debtor" shall mean
any one of them individually.
"Guarantied Obligations" shall mean, with respect to
each Guarantor: (a) the due and punctual payment of the principal of,
and interest (including, any and all interest which, but for the
application of the provisions of the Bankruptcy Code, would have
accrued on such amounts) on, any and all premium on, and any and all
fees, costs, and expenses incurred in connection with or on, the
Indebtedness owed by any Debtor to Lender pursuant to the terms of the
Loan Documents; and (b) the due and punctual payment of all other
present or future Indebtedness owing by a Debtor to Lender.
"Guarantor" and "Guarantors" shall have the meaning
ascribed to such terms in the preamble of this Guaranty.
"Guaranty" shall have the meaning ascribed to such
term in the preamble of this Guaranty.
"Indebtedness" shall mean any and all Obligations,
indebtedness, or liabilities of any kind or character owed by a Debtor
to Lender and arising directly or indirectly out of or in connection
with the Loan Agreement, this Guaranty or the other Loan Documents,
including all such obligations, indebtedness, or liabilities, whether
for principal, interest (including any and all interest which, but for
the application of the provisions of the Bankruptcy Code, would have
accrued on such amounts), premium, reimbursement obligations, fees,
costs, expenses (including attorneys' fees), or indemnity obligations,
whether heretofore, now, or hereafter made, incurred, or created,
whether voluntarily or involuntarily made, incurred, or created,
whether secured or unsecured (and if secured, regardless of the nature
or extent of the security), whether absolute or contingent, liquidated
or unliquidated, or determined or indeterminate, whether a Debtor is
liable individually or jointly with others, and whether recovery is or
hereafter becomes barred by any statute of limitations or otherwise
becomes unenforceable for any reason whatsoever, including any act or
failure to act by Lender.
"Lender" shall have the meaning ascribed to such term
in the preamble of this Guaranty.
"Loan Agreement" shall have the meaning ascribed to
such term in the recitals of this Guaranty.
"MICC" shall have the meaning set forth in the
preamble of this Guaranty.
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"Parent" shall have the meaning set forth in the
preamble of this Guaranty.
(b) Construction. Unless the context of this Guaranty clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, the part includes the whole, the terms
"include" and "including" are not limiting, and the term "or" has the inclusive
meaning represented by the phrase "and/or." The words "hereof," "herein,"
"hereby," "hereunder," and other similar terms refer to this Guaranty as a whole
and not to any particular provision of this Guaranty. Any reference in this
Guaranty to any of the following documents includes any and all alterations,
amendments, restatements, extensions, modifications, renewals, or supplements
thereto or thereof, as applicable: the Loan Agreement; this Guaranty; and the
other Loan Documents. Neither this Guaranty nor any uncertainty or ambiguity
herein shall be construed or resolved against Lender or any Guarantor, whether
under any rule of construction or otherwise. On the contrary, this Guaranty has
been reviewed by each Guarantor and Lender and their respective counsel, and
shall be construed and interpreted according to the ordinary meaning of the
words used so as to fairly accomplish the purposes and intentions of Lender and
each Guarantor.
2. Guarantied Obligations. Each Guarantor, jointly and severally,
hereby irrevocably and unconditionally guaranties to Lender as and for its own
debt, until final and indefeasible payment thereof has been made, (a) the
payment of the Guarantied Obligations, in each case when and as the same shall
become due and payable, whether at maturity, pursuant to a mandatory prepayment
requirement, by acceleration, or otherwise; it being the intent of such
Guarantor that the guaranty set forth herein shall be a guaranty of payment and
not a guaranty of collection; and (b) the punctual and faithful performance,
keeping, observance, and fulfillment by each Debtor of all of the agreements,
conditions, covenants, and obligations of such Debtor contained in the Loan
Agreement and under each of the other Loan Documents.
3. Continuing Guaranty. This Guaranty includes Guarantied Obligations
arising under successive transactions continuing, compromising, extending,
increasing, modifying, releasing, or renewing the Guarantied Obligations,
changing the interest rate, payment terms, or other terms and conditions
thereof, or creating new or additional Guarantied Obligations after prior
Guarantied Obligations have been satisfied in whole or in part. To the maximum
extent permitted by law, each Guarantor hereby waives any right to revoke this
Guaranty as to future Indebtedness. If such a revocation is effective
notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees
that (a) no such revocation shall be effective until written notice thereof has
been received by Lender, (b) no such revocation shall apply to any Guarantied
Obligations in existence on such date (including any subsequent continuation,
extension, or renewal thereof, or change in the interest rate, payment terms, or
other terms and conditions thereof), (c) no such revocation shall apply to any
Guarantied Obligations made or created after such date to the extent made or
created pursuant to a legally binding commitment of Lender in existence on the
date of such revocation, (d) no payment by such Guarantor, any Debtor, or from
any other source, prior to the date of such revocation shall reduce the maximum
obligation of such Guarantor
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hereunder, and (e) any payment by a Debtor or from any source other than such
Guarantor subsequent to the date of such revocation shall first be applied to
that portion of the Guarantied Obligations as to which the revocation is
effective and which are not, therefore, guarantied hereunder, and to the extent
so applied shall not reduce the maximum obligation of such Guarantor hereunder.
4. Performance Under this Guaranty. In the event that a Debtor fails to
make any payment of any Guarantied Obligations on or before the due date
thereof, or if a Debtor shall fail to perform, keep, observe, or fulfill any
other obligation referred to in clause (b) of Section 2 hereof in the manner
provided in the Loan Agreement or the other Loan Documents, as applicable,
Guarantors immediately shall cause such payment to be made or each of such
obligations to be performed, kept, observed, or fulfilled.
5. Primary Obligations. This Guaranty is a primary and original
obligation of each Guarantor, is not merely the creation of a surety
relationship, and is an absolute, unconditional, and continuing guaranty of
payment and performance which shall remain in full force and effect without
respect to future changes in conditions. Each Guarantor hereby agrees that it is
directly, jointly and severally with any other guarantor of the Guarantied
Obligations, liable to Lender, that the obligations of such Guarantor hereunder
are independent of the obligations of a Debtor or any other guarantor, and that
a separate action may be brought against such Guarantor, whether such action is
brought against a Debtor or any other guarantor or whether a Debtor or any other
guarantor is joined in such action. Each Guarantor hereby agrees that its
liability hereunder shall be immediate and shall not be contingent upon the
exercise or enforcement by Lender of whatever remedies it may have against any
Debtor or any other guarantor, or the enforcement of any lien or realization
upon any security Lender may at any time possess. Each Guarantor hereby agrees
that any release which may be given by Lender to any Debtor or any other
guarantor shall not release such Guarantor. Each Guarantor consents and agrees
that Lender shall be under no obligation to marshal any property or assets of a
Debtor or any other guarantor in favor of such Guarantor, or against or in
payment of any or all of the Guarantied Obligations.
6. Waivers.
(a) To the fullest extent permitted by applicable law, each
Guarantor hereby waives: (i) notice of acceptance hereof; (ii) notice of any
loans or other financial accommodations made or extended under the Loan
Agreement, or the creation or existence of any Guarantied Obligations; (iii)
notice of the amount of the Guarantied Obligations subject, however, to such
Guarantor's right to make inquiry of Lender to ascertain the amount of the
Guarantied Obligations at any reasonable time; (iv) notice of any adverse change
in the financial condition of Debtor or of any other fact that might increase
such Guarantor's risk hereunder; (v) notice of presentment for payment, demand,
protest, and notice thereof as to any instrument among the Loan Documents; (vi)
notice of any Default or Event of Default under the Loan Agreement; and (vii)
all other notices (except if such notice is specifically required to be given to
such Guarantor under this Guaranty or any other Loan
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Documents to which such Guarantor is a party) and demands to which such
Guarantor might otherwise be entitled.
(b) To the fullest extent permitted by applicable law, each
Guarantor hereby waives the right by statute or otherwise to require Lender to
institute suit against any Debtor or to exhaust any rights and remedies which
Lender has or may have against any Debtor. In this regard, each Guarantor agrees
that it is bound to the payment of each and all Guarantied Obligations, whether
now existing or hereafter arising, as fully as if such Guarantied Obligations
were directly owing to Lender by such Guarantor. Each Guarantor further waives
any defense arising by reason of any disability or other defense (other than the
defense that the Guarantied Obligations shall have been fully and finally
performed and indefeasibly paid in full in cash) of any Debtor or by reason of
the cessation from any cause whatsoever of the liability of any Debtor in
respect thereof.
(c) To the fullest extent permitted by applicable law, each
Guarantor hereby waives: (i) any rights to assert against Lender any defense
(legal or equitable), set-off, counterclaim, or claim which such Guarantor may
now or at any time hereafter have against any Debtor or any other party liable
to Lender; (ii) any defense, set-off, counterclaim, or claim, of any kind or
nature, arising directly or indirectly from the present or future lack of
perfection, sufficiency, validity, or enforceability of the Guarantied
Obligations or any security therefor; (iii) any defense arising by reason of any
claim or defense based upon an election of remedies by Lender including any
defense based upon an election of remedies by Lender under the provisions of
Sections 580d and 726 of the California Code of Civil Procedure, or any similar
law of California or any other jurisdiction; and (iv) the benefit of any statute
of limitations affecting such Guarantor's liability hereunder or the enforcement
thereof, and any act which shall defer or delay the operation of any statute of
limitations applicable to the Guarantied Obligations shall similarly operate to
defer or delay the operation of such statute of limitations applicable to such
Guarantor's liability hereunder.
(d) Until such time as all of the Guarantied Obligations have
been fully, finally, and indefeasibly paid in full in cash: (i) each Guarantor
hereby waives and postpones any right of subrogation such Guarantor has or may
have as against any Debtor with respect to the Guarantied Obligations; (ii) in
addition, each Guarantor hereby waives and postpones any right to proceed
against any Debtor or any other Person, now or hereafter, for contribution,
indemnity, reimbursement, or any other suretyship rights and claims
(irrespective of whether direct or indirect, liquidated or contingent), with
respect to the Guarantied Obligations; and (iii) in addition, each Guarantor
also hereby waives and postpones any right to proceed or to seek recourse
against or with respect to any property or asset of any Debtor.
(e) If any of the Guarantied Obligations at any time are
secured by a mortgage or deed of trust upon real property, Lender may elect, in
its sole discretion, upon a default with respect to the Guarantied Obligations,
to foreclose such mortgage or deed of trust judicially or nonjudicially in any
manner permitted by law, before or after enforcing this Guaranty, without
diminishing or affecting the liability of any Guarantor hereunder. Each
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Guarantor understands that (a) by virtue of the operation of California's
antideficiency law applicable to nonjudicial foreclosures or any similar laws of
any other jurisdiction, an election by Lender nonjudicially to foreclose such a
mortgage or deed of trust probably would have the effect of impairing or
destroying rights of subrogation, reimbursement, contribution, or indemnity of
such Guarantor against any Debtor or other guarantors or sureties, and (b)
absent the waiver given by such Guarantor herein, such an election would estop
Lender from enforcing this Guaranty against such Guarantor. Understanding the
foregoing, and understanding that Guarantors hereby are relinquishing a defense
to the enforceability of this Guaranty, each Guarantor hereby waives any right
to assert against Lender any defense to the enforcement of this Guaranty,
whether denominated "estoppel" or otherwise, based on or arising from an
election by Lender nonjudicially to foreclose any such mortgage or deed of
trust. Each Guarantor understands that the effect of the foregoing waiver may be
that such Guarantor may have liability hereunder for amounts with respect to
which such Guarantor may be left without rights of subrogation, reimbursement,
contribution, or indemnity against any Debtor or other guarantors or sureties.
Each Guarantor also agrees that the "fair market value" provisions of Section
580a of the California Code of Civil Procedure or any similar laws of any other
jurisdiction shall have no applicability with respect to the determination of
such Guarantor's liability under this Guaranty.
(f) Without limiting the generality of any other waiver or
other provision set forth in this Guaranty, each Guarantor waives all rights and
defenses that such Guarantor may have if the debt of any debtor is secured by
real property. This means, among other things:
(i) Lender may collect from any Guarantor without
first foreclosing on any real or personal property collateral that may be
pledged by any Debtor.
(ii) If Lender forecloses on any real property
collateral that may be pledged by any Debtor:
(1) the amount of the debt may be reduced
only by the price for which that collateral is sold at the
foreclosure sale, even if the collateral is worth more than
the sale price.
(2) Lender may collect from any Guarantor
even if Lender, by foreclosing on the real property
collateral, has destroyed any right any Guarantor may have to
collect from any Debtor.
This is an unconditional and irrevocable waiver of any rights and defenses each
Guarantor may have if a Debtor's debt is secured by real property. These rights
and defenses are based upon Section 580a, 580b, 580d, or 726 of the California
Code of Civil Procedure or any similar laws of California or any other
jurisdiction.
(g) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR
OTHER PROVISION SET FORTH IN THIS GUARANTY, EACH GUARANTOR
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HEREBY WAIVES, TO THE MAXIMUM EXTENT SUCH WAIVER IS PERMITTED BY LAW, ANY AND
ALL BENEFITS OR DEFENSES ARISING DIRECTLY OR INDIRECTLY UNDER ANY ONE OR MORE OF
CALIFORNIA CIVIL CODE Sections 2799, 2808, 2809, 2810, 2815, 2819, 2820,
2821, 2822, 2838, 2839, 2845, 2847, 2848, 2849, AND 2850, CALIFORNIA CODE OF
CIVIL PROCEDURE Sections 580a, 580b, 580c, 580d, AND 726, AND CHAPTER 2 OF
TITLE 14 OF THE CALIFORNIA CIVIL CODE or any similar laws of California or any
other jurisdiction.
(h) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR
OTHER PROVISION SET FORTH IN THIS GUARANTY, EACH GUARANTOR WAIVES ALL RIGHTS AND
DEFENSES ARISING OUT OF AN ELECTION OF REMEDIES BY LENDER, EVEN THOUGH THAT
ELECTION OF REMEDIES, SUCH AS A NONJUDICIAL FORECLOSURE WITH RESPECT TO SECURITY
FOR A GUARANTIED OBLIGATION, HAS DESTROYED such GUARANTOR'S RIGHTS OF
SUBROGATION AND REIMBURSEMENT AGAINST A DEBTOR BY THE OPERATION OF SECTION 580d
OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR ANY SIMILAR LAWS OF CALIFORNIA OR
ANY OTHER JURISDICTION OR OTHERWISE.
7. Releases. Each Guarantor consents and agrees that, without notice to
or by such Guarantor and without affecting or impairing the obligations of such
Guarantor hereunder, Lender may, by action or inaction, compromise or settle,
extend the period of duration or the time for the payment, or discharge the
performance of, or may refuse to, or otherwise not enforce, or may, by action or
inaction, release all or any one or more parties to, any one or more of the
terms and provisions of the Loan Agreement or any of the other Loan Documents or
may grant other indulgences to one or more of the Debtors in respect thereof, or
may amend or modify in any manner and at any time (or from time to time) any one
or more of the Loan Agreement or any of the other Loan Documents, or may, by
action or inaction, release or substitute any other guarantor, if any, of the
Guarantied Obligations, or may enforce, exchange, release, or waive, by action
or inaction, any security for the Guarantied Obligations or any other guaranty
of the Guarantied Obligations, or any portion thereof.
8. No Election. Lender shall have the right to seek recourse against
any Guarantor to the fullest extent provided for herein and no election by
Lender to proceed in one form of action or proceeding, or against any party, or
on any obligation, shall constitute a waiver of Lender's right to proceed in any
other form of action or proceeding or against other parties unless Lender has
expressly waived such right in writing. Specifically, but without limiting the
generality of the foregoing, no action or proceeding by Lender under any
document or instrument evidencing the Guarantied Obligations shall serve to
diminish the liability of the Guarantors under this Guaranty except to the
extent that Lender finally and unconditionally shall have realized indefeasible
payment by such action or proceeding.
9. Indefeasible Payment. The Guarantied Obligations shall not be
considered indefeasibly paid for purposes of this Guaranty unless and until all
payments to Lender are
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no longer subject to any right on the part of any person whomsoever, including a
Debtor, any Debtor as a debtor in possession, or any trustee (whether appointed
under the Bankruptcy Code or otherwise) of any Debtor's assets to invalidate or
set aside such payments or to seek to recoup the amount of such payments or any
portion thereof, or to declare same to be fraudulent or preferential. In the
event that, for any reason, all or any portion of such payments to Lender is set
aside or restored, whether voluntarily or involuntarily, after the making
thereof, the obligation or part thereof intended to be satisfied thereby shall
be revived and continued in full force and effect as if said payment or payments
had not been made and Guarantors shall be liable for the full amount Lender is
required to repay plus any and all reasonable costs and expenses (including
reasonable attorneys' fees) paid by Lender in connection therewith.
10. Financial Condition of Debtors. Each Guarantor represents and
warrants to Lender that it is currently informed of the financial condition of
each of the Debtors and of all other circumstances which a diligent inquiry
would reveal and which bear upon the risk of nonpayment of the Guarantied
Obligations. Each Guarantor further represents and warrants to Lender that it
has read and understands the terms and conditions of the Loan Agreement and the
other Loan Documents. Each Guarantor hereby covenants that it will continue to
keep itself informed of each Debtor's financial condition, the financial
condition of other guarantors, if any, and of all other circumstances which bear
upon the risk of nonpayment or nonperformance of the Guarantied Obligations.
11. Payments; Application. All payments to be made hereunder by any
Guarantor shall be made in lawful money of the United States of America at the
time of payment, shall be made in immediately available funds, and shall be made
without deduction (whether for taxes or otherwise) or offset. All payments made
by any Guarantor hereunder shall be applied as follows: first, to all reasonable
costs and expenses (including reasonable attorneys' fees) incurred by Lender in
enforcing this Guaranty or in collecting the Guarantied Obligations; second, to
all accrued and unpaid interest, premium, if any, and fees owing to Lender
constituting Guarantied Obligations; and third, to the balance of the Guarantied
Obligations.
12. Attorneys' Fees and Costs. Each Guarantor agrees to pay, on demand,
all reasonable attorneys' fees and all other reasonable costs and expenses which
may be incurred by Lender in the enforcement of this Guaranty or in any way
arising out of, or consequential to the protection, assertion, or enforcement of
the Guarantied Obligations (or any security therefor), irrespective of whether
suit is brought.
13. Notices. All notices and other communications hereunder to Lender
shall be in writing and shall be mailed, sent or delivered in accordance with
the Loan Agreement and all notices and other communications hereunder to a
Guarantor shall be in writing and shall be mailed, sent or delivered in care of
Parent in accordance with the Loan Agreement.
14. Cumulative Remedies. No remedy under this Guaranty, the Loan
Agreement, or any other Loan Document is intended to be exclusive of any other
remedy, but each and
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every remedy shall be cumulative and in addition to any and every other remedy
given under this Guaranty, the Loan Agreement, or any other Loan Document, and
those provided by law. No delay or omission by Lender to exercise any right
under this Guaranty shall impair any such right nor be construed to be a waiver
thereof. No failure on the part of Lender to exercise, and no delay in
exercising, any right under this Guaranty shall operate as a waiver thereof; nor
shall any single or partial exercise of any right under this Guaranty preclude
any other or further exercise thereof or the exercise of any other right.
15. Severability of Provisions. Any provision of this Guaranty which is
prohibited or unenforceable under applicable law shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
16. Amendments. This Guaranty may not be altered, amended, or modified,
nor may any provision hereof be waived or noncompliance therewith consented to,
except by means of a writing executed by each Guarantor and Lender. Any such
alteration, amendment, modification, waiver, or consent shall be effective only
to the extent specified therein and for the specific purpose for which given. No
course of dealing and no delay or waiver of any right or default under this
Guaranty shall be deemed a waiver of any other, similar or dissimilar, right or
default or otherwise prejudice the rights and remedies hereunder.
17. Successors and Assigns. This Guaranty shall be binding upon each
Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of Lender on behalf thereof; provided, however, that
Guarantors shall not assign this Guaranty or delegate any of their duties
hereunder without Lender's prior written consent and any unconsented to
assignment shall be absolutely void. In the event of any assignment or other
transfer of rights by Lender, the rights and benefits herein conferred upon
Lender shall automatically extend to and be vested in such assignee or other
transferee.
18. No Third Party Beneficiary. This Guaranty is solely for the benefit
of Lender and its successors and assigns and may not be relied on by any other
Person.
19. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
THE VALIDITY OF THIS GUARANTY, ITS CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HERETO WITH
RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED
UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS GUARANTY SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND
FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, OR AT
THE SOLE OPTION OF LENDER, IN ANY OTHER COURT IN WHICH LENDER ON BEHALF OF
LENDER SHALL INITIATE LEGAL OR EQUITABLE
9
PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN
CONTROVERSY. EACH GUARANTOR AND LENDER ON BEHALF OF LENDER WAIVES, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO ASSERT THE
DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY
PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 19.
EACH GUARANTOR AND LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH GUARANTOR AND LENDER REPRESENT THAT EACH SUCH PARTY HAS
REVIEWED THIS WAIVER AND EACH SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF
LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
20. Gaming Laws. All rights, remedies and powers provided in this
Guaranty or any other agreement related to the Loan Agreement may be exercised
only to the extent that the exercise thereof does not violate any Applicable
Gaming Laws and all provisions of this Guaranty are intended to be subject to
the Applicable Gaming Laws and to be limited solely to the extent necessary to
not render the provisions of this Guaranty invalid or unenforceable, in whole or
in part.
[Signature page follows]
IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Guaranty as of the date first written above.
MAJESTIC INVESTOR HOLDINGS, LLC,
a Delaware limited liability company
By: /s/ Michael E. Kelly
--------------------------------
Name: Michael E. Kelly
--------------------------------
Title: EVP, COO, CFO
--------------------------------
MAJESTIC INVESTOR CAPITAL CORP.,
a Delaware corporation
By: /s/ Michael E. Kelly
--------------------------------
Name: Michael E. Kelly
--------------------------------
Title: EVP, COO, CFO
--------------------------------
BARDEN NEVADA GAMING, LLC,
a Nevada limited liability company
By: /s/ Michael E. Kelly
--------------------------------
Name: Michael E. Kelly
--------------------------------
Title: EVP, COO, CFO
--------------------------------
BARDEN COLORADO GAMING, LLC,
a Colorado limited liability company
By: /s/ Michael E. Kelly
--------------------------------
Name: Michael E. Kelly
--------------------------------
Title: EVP, COO, CFO
--------------------------------
BARDEN MISSISSIPPI GAMING, LLC,
a Mississippi limited liability company
By: /s/ Michael E. Kelly
--------------------------------
Name: Michael E. Kelly
--------------------------------
Title: EVP, COO, CFO
--------------------------------
S-1
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 1/29/02 | | | | | | | None on these Dates |
| | 12/6/01 | | 1 |
| List all Filings |
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