EXHIBIT 10.23
(Rev)
GUARANTEE
GUARANTEE, dated this day of September, 2003 by All Capital
LLC, a Nevada limited liability company ("Guarantor") in favor of VIP
Structures, Inc., a New York corporation ("VIP").
WITNESSETH
WHEREAS, Guarantor is the owner of 4.9% of the issued and
outstanding capital stock of Mid-State Raceway, Inc. ("Raceway") and the holder
of warrants to purchase 1,700,000 shares of the capital stock of Raceway; and
WHEREAS, Raceway has entered into a Financing Agreement (the
"Financing Agreement", the definitions of which are herein incorporated herein
by reference) with VIP pursuant to which VIP has agreed to defer payment of a
portion of the Current Contract Sum otherwise payable by Raceway pursuant to the
Main Agreement; and
WHEREAS, as a condition to executing the Financing Agreement
VIP has requested that the Guarantor execute and deliver the within Guarantee.
NOW THEREFORE, in consideration of the premises, the mutual
agreements herein contained the parties hereto agree as follows:
1. Guaranty of Payment and Performance.
(a) Subject to and in accordance with the provisions of
subparagraphs 1 (b) (C)) and (d) hereof, the Guarantor does hereby absolutely,
unconditionally and irrevocably guarantee to VIP the full and punctual payment
and performance of the Obligation (as defined). For purposes of this Guarantee
the term "Obligation" shall be and mean an amount equal to 63% of the Deferred
Portion (but in no event more than $500,000) as and when the same shall become
due and payable, in accordance with the terms of the Financing Agreement.
(b) If any of the Obligation shall not be paid in full as
the same shall become due and payable, either at stated maturity or otherwise,
in accordance with the terms of the Financing Agreement, then and in that event:
(i) VIP shall take and perform
such reasonable efforts (collectively
"Collection Efforts") as shall be reasonably
necessary to cause Raceway to make payment
of the Obligation then due and payable; and
(ii) VIP shall, following the
completion of the Collection Efforts
transmit to the Guarantor written notice
("VIP Notice") setting forth: (A) the
continued existence of the Raceway's default
in payment of the Obligation, (B) the amount
of the Obligation which is at such time the
subject of Raceway's
payment default ("Current Default"), (C) the
amount of the costs incurred by VIP in
performing the Collection Efforts (the
"Collection Costs"), (D) the sum of the
Collection Costs and the Current Default;
and
(iii) Guarantor shall have the
right during the seven day period following
transmittal by VIP of the VIP Notice to cure
Raceway's payment default by making payment
to VIP of the full amount of the sum of the
Current Default and the Collection Costs
prior to the expiration of such seven day
period.
(c)) Subject to the provisions of subparagraph 1 (b) and
(c)) hereof, if the Guarantor shall fail or refuse to pay the full amount of the
sum of Current Default and the Collection Costs (as set forth in the VIP
Notice), then and in such event the Guarantor shall, upon demand, immediately
pay to VIP any such Obligation without presentment, diligence, protest or other
notice of any kind, all of which are hereby expressly waived. In addition to the
foregoing, the Guarantor agrees to pay any and all reasonable expenses
(including without limitation, reasonable attorney's fees and expenses) which
may be paid or incurred by VIP in connection with the enforcement by VIP of the
obligations of the Guarantor with respect to the Obligation. All payments under
this Guarantee shall be made in the place, currency and manner specified for the
Obligation as provided in the Main Agreement.
(d) Anything in this Guarantee to the contrary
notwithstanding the duty and obligation of the Guarantor to pay the Obligation
is and shall be expressly conditioned upon and subject to the satisfaction of
each of the following conditions precedent:
(i) provided all Current
Portions have been paid in full, the Project
shall be completed and a final certificate
of occupancy shall have been issued;
(ii) provided the Current
Portions have been paid in full, the portion
of the Current Contract Sum which shall have
been deferred by VIP and become the Deferred
Portion shall be no less than $800,000.00;
(iii) all non conforming and/or
rejected work and/or materials shall
have been cured, repaired or replaced as
provided in the Main Agreement; and
(iv) VIP shall be, and at all
prior times shall have been, in full and
complete compliance with the provisions of
subparagraph 1(e) of the Financing
Agreement.
(e) Without limiting the generality of the provisions of
subparagraphs 1(a) and (c)) hereof but expressly subject to the provisions of
subparagraphs 1(b) and (d)hereof:
(i) The liability of the Guarantor under this
Guarantee is primary, absolute, direct and immediate, and not conditional or
contingent upon pursuit by VIP of any remedies it may have against Raceway or
any other person or entity, whether pursuant to the terms hereof or at law, in
equity or by statute;
(ii) The Guarantor hereby waives any right it
otherwise might have to require VIP to make any demand upon and/or proceed
against Raceway or any other person or entity before seeking enforcement of this
Guarantee, or to pursue any legal, equitable or statutory remedy otherwise
available to VIP in any particular manner or order;
(iii) The Guarantor hereby expressly authorizes
VIP, in its sole and absolute discretion, without notice to or further assent of
the Guarantor and without in any way discharging, terminating, releasing,
affecting or impairing the obligations and liabilities of the Guarantor
hereunder, from time to time or at any one or more times to: (A) amend, modify,
renew, extend, accelerate or otherwise change the time or manner of payment for
or performance of, or otherwise change, modify or amend any of the other terms
and conditions of the Obligation, (B) release, discharge or compromise or settle
with Raceway, (C) waive compliance with or any default under, forbear from,
delay or only partially enforce, or grant any other indulgences with respect to
the Obligation, (D) assign, transfer, pledge, hypothecate, grant a security
interest in or otherwise transfer its interest in this Guarantee, and (E)
otherwise deal in all respects with Raceway with respect to the Construction
Agreement as if this Guarantee was not in effect;
(iv) The Guarantor: (A) agrees that the validity
and enforceability of its obligations hereunder shall be unaffected by the
genuineness, validity, regularity or enforceability of the Main Agreement or by
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, (B) expressly waives any defense
arising by reason of laches, the statute of limitations or any incapacity, lack
of authority, or other defense of Raceway (including, without limitation, the
bankruptcy, reorganization, liquidation, dissolution, release or discharge of
Raceway or any arrangement, compromise, settlement or other action with respect
to Raceway's creditors or by reason of the cessation from any cause whatsoever
(other than payment or performance in full of the liability of Raceway), and (C)
hereby releases VIP from any requirement of looking into such matters.
2. Guarantor's Obligations Not Affected. This Guarantee is an
absolute, unconditional, irrevocable, present and continuing guarantee of
payment and performance and not merely of collection or collectibility, and,
except as expressly provided herein to the contrary, is in no way conditioned or
contingent upon any attempt to collect from Raceway or any other person any of
the Obligation or upon any other condition or contingency. The obligations of
the Guarantor under this Guarantee shall remain in full force and effect without
regard to, and shall not be impaired or affected by:
(i) any change in the existence, structure or ownership
of Raceway, or any insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition, liquidation, receivership or similar proceeding
affecting Raceway;
(ii) the existence of any claim or other rights that the
Guarantor may have at any time against Raceway, whether in connection herewith
or in any unrelated transactions; provided however that nothing herein shall
prevent the assertion of any such claim by separate suit or compulsory
counterclaim;
(iii) any exercise or non-exercise by VIP or any other
person of any right, power, privilege or remedy pursuant to or in respect of
this Guarantee, or any waiver of any such right, power, privilege or remedy; or
(iv) any merger or consolidation of Raceway with or into
any other person, or any sale, lease or transfer of any or all of the assets of
Raceway to any other person or the dissolution, termination, winding up or other
discontinuation of Raceway.
3. Waiver. Except as herein expressly provided to the contrary,
Guarantor unconditionally waives (i) all notices which may be required by
statute, rule of law or otherwise, notice of acceptance of this Guarantee as
well as (a) presentment, demand for payment and/or performance and protest of
non-payment and/or non-performance, (b) notice of presentment, demand and
protest, (c) notice of any default hereunder and/or under the Note, and of all
indulgences, (d) demand for observance of performance of, or enforcement of, any
terms or provisions of this Guarantee, and (e) all other notices and demands
otherwise required by law or statute which Guarantor may lawfully waive.
Further, to the extent permitted by law, Guarantor waives the rights to (f)
trial by jury, (g) implead Raceway or assert a counterclaim against Raceway, (h)
to consolidate any such action with any proceeding involving Raceway, and (ii)
any requirement of diligence on the part of VIP.
4. Termination. This Guarantee and the obligations of the
Guarantor hereunder shall terminate and be of no further force and effect on the
date when the Obligation shall be have been indefeasibly paid in full.
5. No Waivers. No failure or delay by VIP in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or furgher exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies provided herein shall be cumulative and not exclusive of any rights or
remedies provided by law.
6. Notices. Any and all notices, requests or instructions desired
or required to be given to VIP or to Guarantor shall be in writing and shall
either be hand delivered or mailed to the recipient first class, postage
prepaid, certified, return receipt requested at the following respective
addresses:
To: Guarantor 0000 Xxxx Xxxxxxxxx
Xxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
To: VIP The address set forth in
the
Main Agreement
or at such other address as any party hereto shall designate in a writing
complying with the provisions of this Paragraph.
7. Savings Clause. If any provision of this Guarantee is held to
be invalid or unenforceable by any court or tribunal of competent jurisdiction,
the remainder hereof shall not be affected thereby, and such provisions shall be
carried out as nearly as possible according to its original terms and intent to
eliminate such invalidity or unenforceability.
8. General. This agreement sets forth the entire agreement
between the parties hereto with respect to the subject matter hereincontained;
shall be governed and construed in accordance with the laws of the State of New
York; cannot be altered, amended, modified or terminated except by a writing
executed by both of the parties hereto or as herein expressly otherwise
provided; and shall inure to the benefit of and be binding upon the parties
hereto and their respective successors, transferees, heirs, assigns and
beneficiaries.
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
to be executed and delivered as of the day and year first above written.
All Capital LLC
By________________________________
