Exhibit 10.10


 


MEMBERS’
GUARANTY


 


THIS LIMITED CONTINUING
GUARANTY (“Guaranty”), dated as of January 5, 2006 is executed and
delivered by Millennium Gaming, Inc. (“Millennium”), Esquire Ltd., Inc.
(“Esquire”) and MGIM, LLC, a Nevada limited liability company (“MGIM”)
(each a “Guarantor” and, collectively, the “Guarantors”), in
favor of the commercial lending institutions (the “Lenders”) from time
to time party to the Credit Agreement (as hereinafter defined) and Bank of
America, N.A. (“Bank of America”), as Administrative Agent (in such
capacity, together with any successor appointed pursuant to Section 9.06
of the Credit Agreement, the “Administrative Agent”) for the Lenders.


 


WHEREAS, the Lenders, the
Administrative Agent, the Swing Line Lender and the L/C Issuer are parties to a
Credit Agreement dated as of the date hereof (said Agreement, as it may hereafter
be amended, supplemented, modified or restated from time to time, being the “Credit
Agreement”; the terms defined therein and not otherwise defined herein
being used herein as therein defined) with Cannery Casino Resorts, LLC, a
Nevada limited liability company (“CCR”), The Cannery Hotel And Casino,
LLC, a Nevada limited liability company (“CHC”), Nevada Palace, LLC, a
Nevada limited liability company (“Nevada Palace, LLC”) and Rampart Resort
Management, LLC, a Nevada limited liability company (“Rampart”; Rampart,
Nevada Palace, LLC, CHC, CCR and any other entity that may from time to
time be joined as a borrower under the Credit Agreement are individually a “Borrower”
and collectively, the “Borrowers”);


 


WHEREAS, each of the
Guarantors will derive substantial direct and indirect benefit from the
transactions contemplated by the Credit Agreement;


 


NOW, THEREFORE, in
consideration of the foregoing and in order to induce the Lenders to make the
credit extensions contemplated under the Credit Agreement, the Guarantors
hereby agree, jointly and severally, as follows:


 


1.             Definitions and
Construction.


 


(a)           Definitions. The
following terms, as used in this Guaranty, shall have the following meanings:


 


“Bankruptcy Code” shall mean The Bankruptcy Reform Act
of 1978 (11 U.S.C. §§101-1330), as amended or supplemented from time to time,
and any successor statute, and any and all rules issued or promulgated in
connection therewith.


 


“Beneficiaries” shall mean Administrative Agent
and Lenders.


 


“Collateral” shall mean the property or assets
described in Section 17 hereof.


 


“Guaranteed Obligations” shall mean the due and
punctual payment of all Indebtedness owing by Borrowers.


 


“Indebtedness” shall mean any and all
obligations, indebtedness, or liabilities of any kind or character owed to
Beneficiaries by Borrowers and arising directly or


 

















 


indirectly out of or in
connection with the Credit Agreement, the Notes, or the other Loan Documents
(in each case as amended, supplemented, modified or restated from time to time)
plus all of the obligations of the Borrowers or any of their Subsidiaries under
any and all Swap Contracts between the Borrowers and any Lender or Affiliate of
a Lender, 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 reasonable 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 Borrowers are 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 Beneficiaries.


 


(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 term “including” is 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, extensions, modifications,
renewals, supplements or restatements thereto or thereof, as applicable: the
Loan Documents; the Credit Agreement; this Guaranty; and the Notes. Neither
this Guaranty nor any uncertainty or ambiguity herein shall be construed or
resolved against Beneficiaries or any Guarantor, whether under any rule of
construction or otherwise. On the contrary, this Guaranty has been reviewed by
Guarantors, Beneficiaries, 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 Beneficiaries and Guarantors.


 


2.             Guaranteed
Obligations. Each Guarantor, jointly and severally, hereby irrevocably and
unconditionally guarantees to Beneficiaries, as and for its own debt, until
final and indefeasible payment thereof has been made, the due and punctual
payment of the Guaranteed Obligations, in each case when and as the same shall
become due and payable, whether at maturity, by acceleration, or otherwise; it
being the intent of each Guarantor that the guaranty set forth herein shall be
a guaranty of payment and not a guaranty of collection; provided, however,
that each Guarantor shall be liable under this Guaranty for the maximum amount
of such liability that can be incurred without rendering this Guaranty, as it
relates to such Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater amount; provided,
further, notwithstanding anything to the contrary herein, recourse
against each of Millennium and MGIM shall be limited to their Equity Interests
in CCR that are the subject of the Pledge Agreement and recourse against
Esquire shall be limited to the principal amount of all Investments made by the
Borrowers in or to Esquire after the Effective Date.


 


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3.             Continuing
Guaranty. This Guaranty includes Guaranteed Obligations arising under
successive transactions continuing, compromising, extending, increasing,
modifying, releasing, or renewing the Guaranteed Obligations, changing the
interest rate, payment terms, or other terms and conditions thereof, or
creating new or additional Guaranteed Obligations after prior Guaranteed
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 Beneficiaries, (b) no such revocation shall
apply to any Guaranteed 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 Guaranteed Obligations made or created after
such date to the extent made or created pursuant to a legally binding
commitment of Beneficiaries in existence on the date of such revocation, (d) no
payment by any Guarantor, Borrowers, or from any other source, prior to the
date of such revocation, shall reduce the maximum obligation of such Guarantor
hereunder, and (e) any payment by Borrowers or from any source other than
such Guarantor subsequent to the date of such revocation shall first be applied
to that portion of the Guaranteed 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 obligations of such Guarantor
hereunder.


 


4.             [Intentionally
Omitted.]


 


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, including any change of law or any invalidity or irregularity
with respect to the issuance of the Notes. Each Guarantor agrees that it is
directly liable to Beneficiaries (on a several and not joint and several basis),
that the obligations of such Guarantor hereunder are independent of the
obligations of Borrowers or any other Guarantor, and that a separate action may be
brought against such Guarantor, whether such action is brought against a
Borrower or another Guarantor or whether a Borrower or any such other Guarantor
is joined in such action. Guarantor agrees that its liability hereunder shall
be immediate and shall not be contingent upon the exercise or enforcement by
Beneficiaries of whatever remedies they may have against Borrowers or any
other Guarantor, or the enforcement of any lien or realization upon any
security Beneficiaries may at any time possess. Each Guarantor agrees that
any release which may be given by Beneficiaries to a Borrower or any other
Guarantor shall not release such Guarantor, except in the event of payment in
full of the Guaranteed Obligations. Each Guarantor consents and agrees that, to
the fullest extent permitted by applicable law, Beneficiaries shall be under no
obligation to marshal any property or assets of Borrowers or any other
Guarantor in favor of such Guarantor, or against or in payment of any or all of
the Guaranteed Obligations.


 


6.             Waivers.


 


(a)           Each Guarantor hereby
waives, to the fullest extent permitted by applicable law: (i) notice of
acceptance hereof; (ii) notice of any loans or other financial
accommodations made or extended under the Credit Agreement, or the creation or
existence of any Guaranteed


 


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Obligations;
(iii) notice of the amount of the Guaranteed Obligations, subject,
however, to such Guarantor’s right to make inquiry of Administrative Agent to
ascertain the amount of the Guaranteed Obligations at any reasonable time; (iv) notice
of any adverse change in the financial condition of Borrowers 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 the Notes or
any other instrument; (vi) notice of any Default or Event of Default under
the Credit Agreement; and (vii) all other notices (except if such notice
is specifically required to be given to a Guarantor under this Guaranty or any
other Loan Document to which such Guarantor is party) and demands to which such
Guarantor might otherwise be entitled.


 


(b)           To the fullest extent
permitted by applicable law, each Guarantor waives the right by statute or
otherwise to require Beneficiaries to institute suit against Borrowers or to
exhaust any rights and remedies which Beneficiaries have or may have
against Borrowers. In this regard, each Guarantor agrees that it is bound to
the payment of each and all Guaranteed Obligations, whether now existing or
hereafter accruing, as fully as if such Guaranteed Obligations were directly
owing to Beneficiaries by such Guarantor, subject to the limitation set forth
in Section 2 hereof. Each Guarantor further waives any defense arising by
reason of any disability or other defense (other than the defense that the
Guaranteed Obligations shall have been fully paid and the Commitments
terminated) of Borrowers or by reason of the cessation from any cause
whatsoever of the liability of Borrowers in respect thereof.


 


(c)           To the maximum extent
permitted by law, each Guarantor hereby waives (other than the defense that the
Guaranteed Obligations shall have been fully paid and the Commitments
terminated): (i) any rights to assert against Beneficiaries any defense
(legal or equitable), set-off, counterclaim, or claim which such Guarantor may now
or at any time hereafter have against Borrowers or any other party liable to
Beneficiaries; (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 Guaranteed
Obligations or any security therefor; (iii) any defense arising by reason
of any claim or defense based upon an election of remedies by Beneficiaries; (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 Guaranteed
Obligations shall similarly operate to defer or delay the operation of such
statute of limitations applicable to such Guarantor’s liability hereunder; and (v) to
the fullest extent permitted by law, any defense or benefit that may be
derived from or afforded by law which limits the liability of or exonerates
guaranties or sureties or requires Beneficiaries to exhaust remedies against
the Borrowers prior to commencing any action or foreclosure against such
Guarantor or its properties including, without limitation, the benefits of
Nevada Revised Statutes Sections 40.430 - 40.459, 40.475 and 40.485 as and to
the fullest extent permitted by Nevada Revised Statutes Section 40.495
(1989).


 


(d)           Each Guarantor agrees
that if all or a portion of the Indebtedness or this Guaranty is at any time
secured by a deed of trust or mortgage covering interests in real property,
Beneficiaries, in their sole discretion, without notice or demand and without
affecting the liability of such Guarantor under this Guaranty, may foreclose
pursuant to the terms of the Credit Agreement or otherwise the deed of trust or
mortgage and the interests in real property secured thereby by non-judicial
sale. Each Guarantor understands that the exercise by Beneficiaries of certain
rights and remedies contained in the Credit Agreement and any such deed of
trust or


 


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mortgage
may affect or eliminate such Guarantor’s right of subrogation against
Borrowers and that such Guarantor may therefore incur a partially or
totally non-reimbursable liability hereunder. Nevertheless, each Guarantor
hereby authorizes and empowers Beneficiaries to exercise, in their sole
discretion, any rights and remedies, or any combination thereof, which may then
be available, since it is the intent and purpose of such Guarantor that the
obligations hereunder shall be absolute, independent and unconditional under
any and all circumstances. Notwithstanding any foreclosure of the lien of any
deed of trust or security agreement with respect to any or all of any real or
personal property secured thereby, whether by the exercise of the power of sale
contained therein, by an action for judicial foreclosure or by an acceptance of
a deed in lieu of foreclosure, each Guarantor shall remain bound under this
Guaranty to the fullest extent permitted by applicable law including its
obligation to pay any deficiency following a non-judicial foreclosure.


 


(e)           (1) Notwithstanding
anything to the contrary elsewhere contained herein or in any other Loan
Document, until full payment of the Guaranteed Obligations and termination of
the Commitments, each Guarantor hereby waives, to the fullest extent permitted
by applicable law, with respect to Borrowers and their respective successors
and assigns (including any surety) any and all rights at law or in equity, to
subrogation, to reimbursement, to exoneration, to contribution, to setoff or to
any other rights that could accrue to a surety against a principal, to a
guarantor against a maker or obligor, to an accommodation party against the
party accommodated, or to a holder or transferee against a maker and which such
Guarantor may have or hereafter acquire against Borrowers in connection
with or as a result of Borrowers’ execution, delivery and/or performance of the
Credit Agreement or any other Loan Document. Each Guarantor agrees that it
shall not have or assert any such rights against Borrowers or Borrowers’
successors and assigns or any other surety, either directly or as an attempted
setoff to any action commenced against such Guarantor by Borrowers (as borrower
or in any other capacity) or any other surety until the Guaranteed Obligations
have been fully repaid to the Beneficiaries and the Commitments terminated. Each
Guarantor hereby acknowledges and agrees that this waiver is intended to
benefit the Beneficiaries and shall not limit or otherwise affect any of the Borrowers’
liability hereunder, under any other Loan Document to which Borrowers are a
party, or the enforceability hereof or thereof.


 


(2)           To
the extent any waiver of subrogation contained in subparagraph (e)(1) is
unenforceable, each Guarantor shall, until the Guaranteed 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 canceled, withhold
exercise of (a) any claim, right or remedy, direct or indirect, that such
Guarantor now has or may hereafter have against Borrowers or any of their
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 Borrowers, (ii) any right to enforce, or to participate in, any
claim, right or remedy that any Beneficiary now has or may hereafter have
against Borrowers, and (iii) any benefit of, and any right to participate
in, any collateral or security now or hereafter held by the Beneficiaries, and (b) any
right of contribution such Guarantor may have against any other Guarantor
(including without limitation any such right of contribution). Each


 


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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 Borrowers or against any collateral or
security, and any rights of contribution Guarantor may have against any
such other Guarantor, shall be junior and subordinate to any rights the
Administrative Agent or Lenders may have against Borrowers, to all right,
title and interest the Beneficiaries may have in any such collateral or
security, and to any right the Beneficiaries may have against such other
Guarantor. The 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 Guarantors 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
Guaranteed Obligations shall not have been paid in full, such amount shall be
held in trust for the Administrative Agent on behalf of Lenders and shall
forthwith be paid over to the Administrative Agent for the benefit of Lenders
to be credited and applied against the Guaranteed Obligations, whether matured
or unmatured, in accordance with the Credit Agreement.


 


7.             Esquire
Indebtedness. After the date hereof, Esquire will not incur Indebtedness in
an aggregate principal amount in excess of $4,000,000.


 


8.             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,
Beneficiaries 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
Credit Agreement, the Notes, or any of the other Loan Documents or may grant
other indulgences to Borrowers 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
Credit Agreement, the Notes, or any of the other Loan Documents, or may, by
action or inaction, release or substitute any other Guarantor, if any, of the
Guaranteed Obligations, or may enforce, exchange, release, or waive, by
action or inaction, any security for the Guaranteed Obligations (including the
Collateral) or any other guaranty of the Guaranteed Obligations, or any portion
thereof. It is understood and agreed that, notwithstanding anything to the
contrary herein, Esquire shall be released as a Guarantor hereunder on the date
of the Third Closing without further action by any party.


 


9.             No Election. Beneficiaries
shall have the right to seek recourse against any Guarantor to the fullest
extent provided for herein and no election by Beneficiaries to proceed in one form of
action or proceeding, or against any Guarantor or other party, or on any
obligation, shall constitute a waiver of Beneficiaries’ right to proceed in any
other form of action or proceeding or against any other Guarantor or other
parties unless Beneficiaries have expressly waived such right in writing. Specifically,
but without limiting the generality of the foregoing, no action or proceeding
by Beneficiaries under any document or instrument evidencing the Guaranteed
Obligations shall serve to diminish the liability of Guarantors under this
Guaranty


 


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except
to the extent that Beneficiaries finally and unconditionally shall have
realized indefeasible payment by such action or proceeding.


 


10.           Indefeasible Payment.
In the event that, for any reason, all or any portion of any payments to
Beneficiaries 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 each Guarantor shall be liable
for the full amount Beneficiaries are required to repay plus any and all costs
and expenses (including attorneys’ fees) paid by Beneficiaries in connection
therewith.


 


11.           Financial Condition
of Borrowers. Each Guarantor represents and warrants to Beneficiaries that
it is currently informed of the financial condition of Borrowers and of all
other circumstances which a diligent inquiry would reveal and which bear upon
the risk of nonpayment of the Guaranteed Obligations. Each Guarantor further
represents and warrants to Beneficiaries that it has read and understands the terms
and conditions of the Credit Agreement, the Notes, and the other Loan Documents.
Each Guarantor hereby covenants that it will continue to keep itself informed
of Borrowers’ 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 Guaranteed Obligations.


 


12.           [Intentionally
Omitted.]


 


13.           Payments;
Application. All payment 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 setoff,
deduction (whether for Taxes or otherwise) or counterclaim. All payments made
by any Guarantor hereunder shall be applied as follows:  first, to all reasonable costs and expenses
(including attorneys’ fees) incurred by Beneficiaries in enforcing this
Guaranty or in collecting the Guaranteed Obligations; second, to all accrued
and unpaid interest, premium, if any, and fees owing to Beneficiaries
constituting Guaranteed Obligations; and third, to the balance of the
Guaranteed Obligations.


 


14.           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
Beneficiaries in the enforcement of this Guaranty or in any way arising out of,
or consequential to the protection, assertion, or enforcement of the Guaranteed
Obligations (or any security therefor), irrespective of whether suit is
brought.


 


15.           Notices. All
notices and other communications provided to any party hereto under this
Guaranty shall be in writing or by facsimile and addressed, delivered or
transmitted to such party at its address or facsimile number set forth below or
at such other address or facsimile number as may be designated by such
party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any
notice, if transmitted by facsimile, shall be deemed given when transmitted.


 


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If to any
Guarantor:             221 North Rampart Blvd.


Las Vegas, NV 89145


Attn:       William
Wortman and


William Paulos


Facsimile number:  702-507-5992


 


With a copies to:                 Santoro,
Driggs, Walch, Kearney


Johnson & Thompson


400 S. Fourth Street, Suite 300


Los Vegas, Nevada 89101


Attn:       Mike
Kearney, Esq.


Facsimile number:  702-791-1921


 


and


 


Munger, Tolles & Olson LLP

355 South Grand Avenue, 35th Floor

Los Angeles, California 90071


Attn: Judith
Kitano, Esq.

Facsimile number: (213) 683-4052


 


If to
Beneficiaries:                Bank of America,
N.A., as Administrative Agent 

GCIB Agency Management Central I 

Mail Code: TX1-492-14-11

Bank of America Plaza 

901 Main Street, 14th Floor 

Dallas, TX 75202-3714

Attention: Chris M. Levine – AVP, Agency Management Officer 

Telephone: 214-209-4129

Facsimile: 214-290-9432

Email: chris.m.levine@bankofamerica.com


 


With a copy
to:                    Mayer, Brown,
Rowe & Maw LLP

350 South Grand Avenue

Suite 2500

Los Angeles, California  90071

Attn: Brian E. Newhouse, Esq.

Facsimile number: (213) 576-8135


 


16.           Cumulative Remedies.
No remedy under this Guaranty, under the Credit Agreement, the Notes, or any
Loan Document is intended to be exclusive of any other remedy, but each and every
remedy shall be cumulative and in addition to any and every other remedy given
under this Guaranty, under the Credit Agreement, the Notes, or any other Loan
Document, and those provided by law. No delay or omission by Beneficiaries 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 Beneficiaries
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.


 


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17.           Collateral. The
obligations of Millennium and MGIM under this Guaranty are secured as provided
for in the Pledge Agreement of even date herewith, and recourse against the
Guarantors hereunder is limited to the Collateral (as defined in the Pledge
Agreement), to the extent set forth in the Pledge Agreement.


 


18.           Regulatory Matters.
Notwithstanding any other provision of this Guarantee, Administrative Agent
acknowledges and agrees that this Guarantee and the rights and remedies granted
hereunder remain subject to the limitations and other provisions set forth in Section 7.11
of the Pledge Agreement.


 


19.           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.


 


20.           Entire Agreement;
Amendments. This Guaranty and the Pledge Agreement together constitute the
entire agreement among each Guarantor and Beneficiaries pertaining to the
subject matter contained herein. 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 Administrative Agent. 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.


 


21.           Successors and
Assigns. Subject to the terms of the Credit Agreement, this Guaranty shall
be binding each Guarantor and its successors and assigns and shall inure to the
benefit of the successors and assigns of Beneficiaries; provided, however,
no Guarantor shall assign this Guaranty or delegate any of its duties hereunder
without Beneficiaries’ prior written consent and any unconsented to assignment
shall be absolutely void. In the event of any assignment or other transfer of
rights by Beneficiaries, the rights and benefits herein conferred upon
Beneficiaries shall automatically extend to and be vested in such assignee or
other transferee.


 


22.           Choice of Law and
Venue; Service of Process. THE VALIDITY OF THIS GUARANTY, ITS CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT, AND THE RIGHTS OF EACH GUARANTOR AND
BENEFICIARIES, SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEVADA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY
GUARANTOR WITH RESPECT 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, GUARANTOR ACCEPTS, FOR ITSELF AND IN
CONNECTION WITH ITS ASSETS, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY
FINAL JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS GUARANTY FROM WHICH NO
APPEAL HAS BEEN TAKEN OR IS AVAILABLE.


 


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23.           Waiver of Jury Trial.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH GUARANTOR HEREBY EXPRESSLY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR
PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS GUARANTY, OR IN ANY WAY
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE DEALINGS OF GUARANTORS AND
BENEFICIARIES WITH RESPECT TO THIS GUARANTY, OR THE TRANSACTIONS RELATED
HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE
MAXIMUM EXTENT PERMITTED BY LAW, EACH GUARANTOR HEREBY AGREES THAT ANY SUCH
ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDINGS SHALL BE DECIDED BY A
COURT TRIAL WITHOUT A JURY AND THAT BENEFICIARIES MAY FILE AN ORIGINAL
COUNTERPART OF THIS SECTION WITH ANY COURT OR OTHER TRIBUNAL AS
WRITTEN EVIDENCE OF THE CONSENT OF SUCH GUARANTOR TO THE WAIVER OF ITS RIGHT TO
TRIAL BY JURY.


 


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IN WITNESS WHEREOF, each
of the undersigned has executed and delivered this Guaranty as of the day and
year first written above.


 


	
   

  	
  MILLENNIUM
  GAMING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ William J. Paulos 

  	
   

  
	
   

  	
  Name: 

  	
  William J. Paulos

  
	
   

  	
  Title:

  	
  President

  
					



 


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  MGIM,
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ William J. Paulos

  	
   

  
	
   

  	
  Name: 

  	
  William J. Paulos

  
	
   

  	
  Title:

  	
  Manager

  
					



 


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  ESQUIRE
  LTD., INC.,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ William C. Wortman

  	
   

  
	
   

  	
  Name: 

  	
  William C. Wortman

  
	
   

  	
  Title:

  	
  President

  
					



 


13

















 


AMENDMENT TO LIMITED CONTINUING
GUARANTY


 


This Amendment to Limited
Continuing Guaranty (this “Amendment”), dated as of                  ,
200  , relates to the General Continuing Guaranty dated as of January 5,
2006 (as amended to date, the “Guaranty”), among Millennium Gaming, Inc.,
Esquire Ltd., Inc. and MGIM, LLC (collectively the “Guarantors”) in
favor of the Lenders (as defined in the Credit Agreement (as hereinafter
defined)) and Bank of America, N.A. (“Bank
of America”), as Administrative Agent (the “Administrative Agent”).


 


In compliance with the
Credit Agreement dated as of January 5, 2006 (as amended, supplemented,
modified or restated from time to time, the “Credit Agreement”) among
Cannery Casino Resorts, LLC, The Cannery Hotel and Casino, LLC, Nevada Palace,
LLC, and Rampart Resort Management, LLC (the “Borrowers”), the Administrative
Agent, the L/C Issuer, the Swing Line Lender and the Lenders,                    
(the “Additional Guarantor”) and the Guarantors hereby agree as follows
(capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to them in the Credit Agreement):


 


1.             Amendment. The
Guaranty is hereby amended to add as a party, and more specifically, as a
Guarantor thereunder, the Additional Guarantor.


 


2.             Additional
Guarantor as Guarantor. The Additional Guarantor assumes all of the
obligations and liabilities of a Guarantor under the Guaranty, agrees to be
bound thereby as if the Additional Guarantor were an original party to the
Guaranty and shall be a Guarantor for all purposes under the Loan Documents.


 


3.             Effectiveness.
The Amendment shall become effective on the date hereof upon the execution
hereof by the Additional Guarantor and the Administrative Agent and delivery
hereof to the Administrative Agent.


 


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4.             Governing Law.
This Amendment shall be governed by, and construed in accordance with, the laws
of the State of Nevada, without regard to principles of conflicts of law.


 


	
   

  	
  [Name of Additional Guarantor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A., as Administrative

  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 


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