GUARANTY
GUARANTY, dated as of April 21, 1997 made by WHG RESORTS & CASINOS
INC., formerly known as WMS Hotel Corporation, a Delaware corporation ("WHG"),
in favor of The Bank of Tokyo-Mitsubishi, Ltd. (formerly known as The Mitsubishi
Bank, Limited), a banking corporation organized under the laws of Japan, acting
through its New York Branch (the "Bank").
WMS Industries Inc. ("WMS"), Hugh A. Andrews ("Andrews"), Burton I.
Koffman and Richard E. Koffman (collectively, the "Koffmans") (WMS, Andrews and
the Koffmans are collectively referred to herein as the Guarantors) have entered
into a Guaranty, dated as of May 5, 1992 (the "Guaranty") in favor of the Bank
pursuant to which the Guarantors issued their unconditional guaranty of due and
punctual payment and performance of the "Guaranteed Obligations". Capitalized
terms used but not defined herein shall have the meanings given such terms in
the Guaranty.
The Guaranteed Obligations relate to obligations of WKA to make
additional loans to El Conquistador Partnership L.P. ("El Con LP") under
Paragraph 4 of the First Amendment (the "Amendment") dated May 5, 1992 to the
Letter of Credit and Reimbursement Agreement, dated as of February 7, 1991 (as
amended to date, and as the same may be further amended, modified, restated or
supplemented, the "Letter of Credit Agreement").
The Bank is entering into a Consent and Waiver Agreement, dated as of
April 21, 1997 (the "Waiver Agreement") relating to the Letter of Credit
Agreement. It is a condition precedent to the effectiveness of the Waiver
Agreement that WHG shall have executed and delivered this Guaranty to the Bank.
WHG hereby acknowledges that it will materially benefit from the
Waiver Agreement.
Intending to be legally bound, WHG hereby agrees with the Bank as
follows:
1. (a) WHG hereby absolutely and unconditionally guarantees the due
and punctual payment and performance of the obligations of WKA to make
additional loans pursuant to Paragraph 4 of the Amendment (the "Guaranteed
Obligations") to the extent provided in Section 1(c) hereof. WHG hereby agrees
that if WKA fails to perform the Guaranteed Obligations when and as the same
shall be required in accordance with the terms of the Amendment, on receipt of
demand from the Bank, WHG will forthwith perform the Guaranteed Obligations
which are the subject of such demand to the extent provided in Section 1(c)
hereof.
(b) WHG hereby agrees that, notwithstanding any provision to the
contrary in the Letter of Credit Agreement or the Operative Documents limiting
the recourse of the Bank to assets of the Company, WHG shall be fully and
personally liable
with respect to its covenants, representations, warranties and agreements under
this Guaranty.
(c) The obligations of WHG hereunder with respect to the Guaranteed
Obligations shall be joint and several with the obligations of WMS under the
Guaranty and shall be subject to the same limitations as are the obligations of
WMS under the Guaranty.
(d) The obligations of WHG hereunder shall terminate upon the earliest
to occur of (i) termination of the Letter of Credit Agreement and the actual and
irrevocable receipt by the Bank of payment in full of any amounts which may have
become due and payable, (ii) the advance by WKA of additional loans to the
Company, pursuant to Paragraph 4 of the Amendment, in the aggregate amount of
$3,000,000, and (iii) the Coverage Date.
2. Sections 2 through 15 of the Guaranty are incorporated herein by
reference and the Guarantor hereby agrees to be bound by the terms contained
therein, makes the representations and warranties to the Bank contained therein,
and make each of the covenants to the Bank contained therein, in each case,
mutatia mutandis, as if all such provisions were set forth herein in full.
Notices to WHG shall be addressed as follows: WHG Resorts & Casinos Inc., 6063
East Isle Verde Avenue, Carolina, Puerto Rico 00979, Telecopy: 787-791-2576.
3. From time to time, at the request of the Bank, WHG shall execute
and deliver all such further instruments and take all such further actions as
may be reasonably necessary or appropriate in order to carry out the provisions
of this Guaranty.
WHG RESORTS & CASINOS INC.
By: /s/ Louis J. Nicastro
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Name: Louis J. Nicastro
Title: Chairman
The undersigned hereby consents to the foregoing guaranty by WHG,
ratifies and confirms its Guaranty in all respects and confirms that its
Guaranty remains in full force and effect in accordance with its terms.
WMS INDUSTRIES INC.
By: /s/ Neil D. Nicastro
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Name: Neil D. Nicastro
Title: President