EXHIBIT 10.5
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Agreement") dated as of August 10, 1999, is
made by President Casinos, Inc., a Delaware corporation (the "Guarantor"), in
favor of American Gaming & Entertainment, Ltd., a Delaware corporation (the
"Lender"), who agree as follows:
RECITALS
A. The President Riverboat Casino-Mississippi, Inc., a Mississippi
corporation (the "Borrower"), is or will be indebted unto the Lender for a
loan made or to be made pursuant to the terms of a certain promissory note
dated of even date herewith in the aggregate principal amount of Five Million,
Eight Hundred, Twenty-Seven Thousand, Five Hundred and NO/100 Dollars
($5,827,500.00), together with costs, interest, expenses and attorneys' fees,
made by the Borrower payable to the order of the Lender (as amended, modified,
supplemented, restated, extended or renewed from time to time, the "Note").
B. The making of the loan to the Borrower pursuant to the Note will benefit
the Guarantor.
C. The Lender has required, as a condition to the making of the loan, the
execution of this Agreement by the Guarantor.
NOW, THEREFORE, in order to induce the Lender to accept the Note from the
Borrower, the Guarantor covenants and agrees in favor of the Lender as
follows:
Section 1. Guaranty. The Guarantor hereby unconditionally and irrevocably
guarantees to the Lender the full and punctual payment and performance of all
present and future amounts, liabilities and obligations of the Borrower to the
Lender or to any successor or transferee thereof under or pursuant to the
Note, this Agreement or any of the collateral documents executed by the
Borrower in favor of the Lender in connection with the Note (the "Collateral
Documents"), whether said amounts, liabilities or obligations are liquidated
or unliquidated, now existing or hereafter arising, in principal, interest,
deferral and delinquency charges, prepayment premiums, costs and attorneys'
fees, as therein stipulated, and under and pursuant to all amendments,
supplements and restatements to any of said documents (the "Indebtedness").
Payments made on the Indebtedness will not discharge or diminish the
obligations and liability of the Guarantor under this Agreement for any
remaining and succeeding Indebtedness. As to the Guarantor, the guarantee
provided for in this Agreement is an absolute, unconditional, continuing
guarantee of payment and not of collectibility and is in no way conditioned
upon or limited by: (a) any attempt to collect from the Borrower; (b) the
commencement of any bankruptcy or receivership proceedings by or against the
Borrower; (c) the Borrower's discharge or reduction of its liability (or any
part thereof) under federal bankruptcy law or any applicable state law; (d)
any attempt to collect from, or the exercise of any rights and remedies
against, any person other than the Borrower who may at any time now or
hereafter be primarily or secondarily liable for any or all of the
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Indebtedness, including, without limitation, the Guarantor and any other
maker, endorser, surety, or guarantor of all or a portion of the Indebtedness
(all of the aforementioned persons in this clause (b) other than the Borrower
being herein called collectively the "Obligors" and individually an
"Obligor"); or (e) any resort or recourse to or against any security or
collateral now or hereafter pledged, assigned, or granted to the Lender under
the provisions of any instrument or agreement or otherwise assigned or
conveyed to it. If the Borrower fails to pay any of the Indebtedness, when
and as the same shall become due and payable (whether by acceleration,
declaration, extension or otherwise), the Guarantor shall on demand pay the
same to the Lender in immediately available funds, in lawful money of the
United States of America, at its address specified in or pursuant to Section 8
of this Agreement.
Section 2. Joint and Several Liability. The Guarantor hereby binds and
obligates said Guarantor and Guarantor's successors and assigns jointly and
severally with the Borrower and with the other Obligors for the full and
punctual payment and performance of all of the Indebtedness precisely as if
the same had been contracted and were due and owing by such Guarantor
personally. It is agreed and understood that the Guarantor shall be bound by
all the provisions of this Agreement and for the payment and performance of
the Indebtedness in the same manner as if it were the only person executing
this Agreement or guarantying the Indebtedness.
Section 3. Obligations Absolute. The obligations and liabilities of the
Guarantor under this Agreement are primary, joint and several obligations of
the Guarantor, are continuing, absolute, and unconditional, shall not be
subject to any counterclaim, recoupment, set-off, reduction, or defense based
upon any claim that the Guarantor may have against the Borrower or any of the
Obligors or that the Borrower may have against the Lender or any other party,
are independent of any other guaranty or guaranties at any time in effect with
respect to all or any part of the Indebtedness, and may be enforced regardless
of the existence of such other guaranty or guaranties. The obligations and
liabilities of the Guarantor under this Agreement shall not be affected,
impaired, lessened, modified, waived or released by the invalidity or
unenforceability of the Note or any or all of the Collateral Documents or by
the death of or bankruptcy, reorganization, dissolution, liquidation or
similar proceedings affecting the Borrower or the Guarantor or one or more of
the other Obligors or the sale or other disposition of all or substantially
all of the assets of any of the foregoing. The Guarantor hereby consents that
at any time and from time to time, the Lender may, without in any manner
affecting, impairing, lessening, modifying, waiving or releasing any or all of
the obligations and liabilities of the Guarantor under this Agreement, and
whether or not any of the following actions shall modify or affect the rights
of the Guarantor as to subrogation, reimbursement or indemnity against any
other parties (including the other Obligors), do any one or more of the
following, all without notice to, or further consent of, the Guarantor:
(a) renew, extend or otherwise change the time or terms for payment of
the principal of any of the Indebtedness or any renewals or extensions
thereof;
(b) extend or change the time or terms for performance of any other
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obligations, covenants or agreements of the Borrower or any of the Obligors;
(c) amend, compromise, release, terminate, waive, surrender, or otherwise
deal with in any manner satisfactory to the Lender:
(i) any or all of the provisions of the Note or any or all of the
Collateral Documents,
(ii) any or all of the Indebtedness,
(iii) any or all of the obligations and liabilities of the Borrower,
the Guarantor or one or all of the other Obligors under this Agreement, the
Note or any and all Collateral Documents (without remission of any part of the
Indebtedness) or any or all property or other security given at any time as
collateral by such Guarantor, the Borrower or any other Obligor, without
affecting, impairing, lessening or releasing any or all of the obligations and
liabilities of the Guarantor under this Agreement, and
(iv) any or all of the Obligors; and
(d) sell, assign, collect, substitute, exchange or release any or all
property or other security now or hereafter serving as collateral for any or
all of the Indebtedness or under any or all of the Collateral Documents;
(e) receive additional property or other security as collateral for any
or all of the Indebtedness;
(f) fail or delay to enforce, assert or exercise any right, power,
privilege or remedy conferred upon the Lender;
(g) grant consents or indulgences or take action or omit to take action
under, or in respect of, the Note and any or all of the Collateral Documents;
and
(h) apply any payment received by the Lender of, or on account of, any of
the Indebtedness from the Borrower, from any of the Obligors or from any
source other than the Guarantor to the Indebtedness in whatever order and
manner the Lender elects, and any payment received by the Lender from the
Guarantor (or any of them) for or on account of this Agreement may be applied
by the Lender to any of the Indebtedness in whatever order and manner the
Lender elects.
Section 4. Waiver by Guarantor. The Guarantor unconditionally waives: (a)
notice of the execution and delivery of the Loan Documents; (b) notice of the
Lender's acceptance of and reliance on this Agreement or of the creation of
any of the Indebtedness; (c) presentment, demand, dishonor, protest, notice of
non-payment and notice of dishonor of the Indebtedness, the Note and the
Collateral Documents; (d) notice of transfer or assignment of the Indebtedness
and this Agreement; and (e) all notices required by statute or otherwise to
preserve any rights against the Guarantor hereunder, including, without
limitation, any demand, proof, or notice of non-payment of any of the
Indebtedness by the Borrower or any of the Obligors and notice of any failure
or default on the part of the Borrower or any of the Obligors to perform or
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comply with any term of any of the other documents.
Section 5. Subrogation. Until such time as the Indebtedness has been paid
and performed in full and the provisions of this Agreement are no longer in
effect, the Guarantor shall not exercise any right to subrogation,
reimbursement or contribution against the Borrower or other Obligor nor any
right to subrogation, reimbursement and indemnity against any property or
other security serving at any time as collateral for any or all of the
Indebtedness, all of which rights of subrogation, reimbursement, contribution
and indemnity the Guarantor jointly and severally subordinates to the full and
punctual payment and performance of the Indebtedness.
Section 6. Subordination. In the event that the Guarantor should for any
reason advance or lend monies to the Borrower, whether or not such funds are
used by the Borrower to make a payment under the Borrower's Indebtedness, the
Guarantor hereby agrees that any and all rights that the Guarantor may have or
acquire to collect from or to be reimbursed by the Borrower (or from or by any
other Obligor of the Borrower's Indebtedness), shall in all respects, whether
or not the Borrower presently is or subsequently becomes insolvent, be
subordinate to the rights of the Lender to collect and enforce the payment and
performance of the Borrower's Indebtedness, until such time as the
Indebtedness has been fully paid and performed and the provisions of this
Agreement are no longer in effect.
Section 7. Remedies. Upon the failure in the payment or performance of any
of the Indebtedness when due (whether by acceleration or otherwise) the Lender
may institute a judicial proceeding for the collection of the sums or the
performance of the Indebtedness so due and unpaid or unperformed, and may
prosecute such proceeding to judgment for final decree, and may enforce the
same against the Guarantor and collect the monies adjudged or decreed to be
payable in the manner provided by law out of the property of the Guarantor,
wherever situated. In the event of such a failure, the Lender shall have the
right to proceed first and directly against the Guarantor under this Agreement
without proceeding against the Borrower or any other person (including other
Obligors), without exhausting any other remedies which it may have and without
resorting to any other security held by the Lender.
Section 8. Notices. Any notice or demand which, by provision of this
Agreement, is required or permitted to be given or served by the Lender to or
on the Guarantor shall be deemed to have been sufficiently given and served
for all purposes (if mailed) three calendar days after being deposited,
postage prepaid, in the United States Mail, registered or certified mail, or
(if delivered by express courier) one business day after being delivered to
such courier, or (if delivered in person) the same day as delivery, in each
case addressed (until another address or addresses is given in writing by the
Guarantor to the Lender) as follows:
President Casinos, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
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with copies to:
Xxxxx X. O'Xxxx
Xxxxxx Xxxxxx, L.L.P.
Xxxxx 000, XxxXxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxx, L.L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any notice or demand which, by any provision of this Agreement, is required
or permitted to be given or served by the Guarantor to or on the Lender shall
be deemed to have been sufficiently given and served for all purposes (if
mailed) three calendar days after being deposited, postage prepaid, in the
United States Mail, registered or certified mail, or (if delivered by express
courier) one business day after being delivered to such courier, or (if
delivered in person) the same day as delivery, in each case addressed (until
another address or addresses are given in writing by the Lender to the
Guarantor) as follows:
American Gaming & Entertainment, Ltd.
Xxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: J. Xxxxxxx Xxxxxxxxxx
with copies to:
Xxxxxx X. Xxxx, Esq.
Xxxx & Xxxxx
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxx X. Xxxxx, Esq.
Xxxxx & Xxxxx, L.L.P.
0000 Xxxx Xxx., Xxx. 000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Shamrock Holdings Group, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
X. Xxxxxx Xxxxxxx, Esq.
Xxxxxxxxx, Xxxxx & Xxx, P.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxx X. Xxxx, Esq.
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxx Xxxxxxx, Esq.
Rimmer, Rawlings, XxxXxxxx
& Xxxxxxx
0000 Xxxxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxx X. Xxxxxx, Esq.
Heller, Draper, Hayden, Horn, L.L.C.
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xx. 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 9. Amendment. Neither this Agreement nor any provisions thereof
may be changed, waived, discharged or terminated orally or in any manner other
than by an instrument in writing signed by the party against whom enforcement
of the change, waiver, discharge or termination is sought.
Section 10. Waivers. No course of dealing on the part of the Lender, its
officers, employees, consultants or agents, nor any failure or delay by the
Lender with respect to exercising any of its rights, powers or privileges
under this Agreement shall operate as a waiver thereof.
Section 11. Cumulative Rights. The rights and remedies of the Lender under
this Agreement and the Note and the Collateral Documents shall be cumulative,
and the exercise or partial exercise of any such right or remedy shall not
preclude the exercise of any other right or remedy.
Section 12. Titles of Articles, Sections and Subsections. All titles or
headings to articles, sections, subsections or other divisions of this
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Agreement are only for the convenience of the parties and shall not be
construed to have any effect or meaning with respect to the other content of
such articles, sections, subsections or other divisions, such other content
being controlling as to the agreement between the parties hereto.
Section 13. Governing Law. This Agreement is a contract made under and
shall be construed in accordance with and governed by the laws of the United
States of America and the State of Mississippi.
Section 14. Termination. Upon full and final payment and performance of
the Indebtedness, this Agreement shall terminate. Notwithstanding the
foregoing, if at any time, any payment or part thereof to the Lender with
respect to any of the Borrower's Indebtedness is rescinded or must otherwise
be restored by the Lender pursuant to any insolvency, bankruptcy,
reorganization, receivership or any other debt relief granted to the Borrower
or to any other Obligor, this Agreement and the Guarantor's obligations and
liabilities hereunder shall automatically and retroactively be reinstated. In
the event that the Lender must rescind or restore any payment received in
total or partial satisfaction of the Borrower's Indebtedness, any prior
release or discharge from the terms of this Agreement and the Guarantor's
obligations and liabilities hereunder shall automatically and retroactively be
renewed and reinstated and shall remain in full force and effect to the same
degree and extent as if such release or discharge had never been granted. It
is the intention of the Guarantor, the Borrower and the Lender that the
Guarantor's obligations and liabilities hereunder shall not be discharged
except by the full and complete payment and performance of such Indebtedness,
and then only to the extent of such payment and performance.
Section 15. Successors and Assigns.
(a) All covenants and agreements contained by or on behalf of the
Guarantor in this Agreement shall bind the Guarantor's successors and assigns
and shall inure to the benefit of the Lender and its successors and assigns.
(b) This Agreement is for the benefit of the Lender and for such other
person or persons as may from time to time become or be the holders of any of
the Indebtedness, and this Agreement shall be transferrable and negotiable,
with the same force and effect and to the same extent as the Indebtedness may
be transferrable, it being understood that, upon the transfer or assignment by
the Lender of any of the Indebtedness, the legal holder of such Indebtedness
shall have all of the rights granted to the Lender under this Agreement.
IN WITNESS WHEREOF, the Guarantor has caused this Agreement to be duly
executed as of the date first written above.
PRESIDENT CASINOS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
