EXHIBIT 10.14
GUARANTY AGREEMENT
This Guaranty Agreement ("Agreement") is made and executed this 29th
day of October, 2003 by Xxxxxx X. Xxxxxx ("Guarantor") in favor of The Berkshire
Bank ("Lender") having a place of business at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX
00000.
The undersigned Guarantor undertakes and agrees as follows:
1. OBLIGATIONS GUARANTEED. To induce Lender to establish and/or
continue financing arrangements with and consider making or continuing certain
loans and extending or continuing to extend credit from time to time to
Monticello Raceway Management, Inc. ("Borrower"), and for other good and
valuable consideration, the Guarantor, intending to be legally bound, hereby
absolutely and unconditionally guarantees and becomes surety for the payment and
performance when due (at maturity, upon acceleration, or otherwise) of all of
the Obligations of Borrower of every kind or nature, whether joint or several,
due or to become due, absolute or contingent, now existing or hereafter arising,
and whether principal, interest, fees, costs, expenses or otherwise (including
without limitation any interest and/or expenses accruing following the
commencement of any insolvency, receivership, reorganization or bankruptcy case
or proceeding relating to Borrower, whether or not a claim for post-petition
interest and/or expenses is allowed in such case or proceeding). The Guarantor
shall also pay or reimburse Lender on demand for all costs and expenses,
including without limitation attorneys' fees, incurred by Lender at any time to
enforce, protect, preserve, or defend Lender's rights hereunder and with respect
to any property securing this Agreement. All payments hereunder shall be made in
lawful money of the United States, in immediately available funds. Unless
otherwise defined herein, all capitalized terms shall have the respective
meanings given to such terms in that certain Loan and Security Agreement dated
the date hereof between Borrower and Lender (as it may hereafter be amended,
supplemented, restated or replaced from time to time, the "Loan Agreement").
2. REPRESENTATIONS AND WARRANTIES. The Guarantor represents and
warrants that:
(a) The Guarantor's execution and performance of this Agreement
shall not (i) violate or result in a default or breach (immediately or with the
passage of time) under any contract, agreement or instrument to which the
Guarantor is a party, or by which the Guarantor is bound, (ii) violate or result
in a default or breach under any order, decree, award, injunction, judgment,
law, regulation or rule, (iii) cause or result in the imposition or creation of
any lien upon any property of the Guarantor, or (iv) violate or result in a
breach of the articles of incorporation or by-laws of the Guarantor.
(b) The Guarantor has the full power and authority to enter into
and perform under this Agreement, which has been authorized by all necessary
corporate action on behalf of the Guarantor.
(c) No consent, license or approval of, or filing or
registration with, any governmental authority is necessary for the execution and
performance hereof by the Guarantor.
(d) This Agreement constitutes the valid and binding obligation
of the Guarantor enforceable in accordance with its terms.
(e) This Agreement promotes and furthers the business and
interests of the Guarantor and the creation of the obligations hereunder will
result in direct financial benefit to the Guarantor.
(f) The only stock of Empire Resorts, Inc. entitled to vote is
the outstanding common stock, other than the de minimus amount of preferred
stock entitled to vote.
3. GUARANTOR ACKNOWLEDGEMENTS.
(a) The Guarantor hereby waives notice of (i) acceptance of this
Agreement, (ii) the existence or incurring from time to time of any Obligations
guaranteed hereunder, (iii) the existence of any Event of Default, the making of
demand, nonpayment, or the taking of any action by Lender, under the Loan
Agreement, and (iv) default and demand hereunder.
(b) The Guarantor further acknowledges that the Guarantor (i)
has examined or had the opportunity to examine the Loan Agreement and related
agreements and (ii) waives any defense which may exist resulting from the
Guarantor's failure to receive or. examine at any time the Loan Documents or any
amendments, supplements, restatements or replacements therefor.
(c) The Guarantor acknowledges that in entering into this
Agreement the Guarantor is not relying upon any statement, representation,
warranty or opinion of any kind from Lender as to the present or future
financial condition, performance, assets, liabilities or prospects of Borrower
or as to any other matter.
4. TENDER ACTIONS. The Guarantor hereby consents and agrees that
Lender may at any time or from time to time in Lender's discretion (a) extend or
change the time of payment and/or change the manner, place or terms of payment
of any or all Obligations, (b) amend, supplement, restate or replace the Loan
Agreement or any related agreements, (c) renew or extend any financing now or
hereafter reflected by the Loan Agreement or the maturity thereof or increase
(without limit of any kind and whether related or unrelated) or decrease loans
and extensions of credit to Borrower, (d) modify the terms and conditions under
which loans and extensions of credit may be made to Borrower, (e) settle,
compromise or grant releases for liabilities of Borrower, and/or any other
Person or Persons liable with Guarantor for, any Obligations, (f) exchange,
compromise, release or surrender, or subordinate or release any lien on, any
property (including any collections therefrom or proceeds thereof) of Borrower
or any other Person or Persons now or hereafter securing any of the Obligations,
and (g) apply any and all payments and proceeds of any property of any Person
securing any or all of the Obligations received by Lender at any time against
the Obligations in any order as Lender may determine; all of the foregoing in
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such manner and upon such terms as Lender may see fit, and without notice to or
further consent from the Guarantor, who hereby agrees to be and shall remain
bound upon this Agreement notwithstanding any such action on Lender's part.
5. SCOPE OF GUARANTY. The Agreement is an agreement of suretyship
and a guaranty of payment and not of collection. The liability of the Guarantor
hereunder is absolute, primary, unlimited and unconditional and shall not be
reduced, impaired or affected in any way by reason of (a) any failure to obtain,
retain or preserve, or the lack of prior enforcement of, any rights against any
Person or Persons liable for the Obligations (including Borrower and the
Guarantor) or in any property, (b) the invalidity, unenforceability or
voidability of any Obligations or any liens or rights in any property pledged by
any Person or Persons, (c) any delay in making demand upon Borrower or any delay
in enforcing, or any failure to enforce, any rights against Borrower or any
other Person or Persons liable for any or all of the Obligations or in any
property pledged by any Person or Persons, even if such rights are thereby lost,
(d) any failure, neglect or omission on Lender's part to obtain, perfect or
continue any lien upon, protect, exercise rights against, or realize on, any
property of Borrower, the Guarantor or any other party securing the Obligations,
(e) the existence or nonexistence of any defenses which may be available to the
Borrower with respect to the Obligations, (f) the granting of any waiver or
forbearance at any time and for any period with respect to any performance by
Borrower or any Event(s) of Default under the Loan Agreement, (g) the
commencement of any bankruptcy, reorganization, liquidation, dissolution or
receivership proceeding or case filed by or against Borrower or any Guarantor or
(h) any other fact, event, condition or omission which may give rise to a
suretyship defense. Guarantor promises and undertakes to make all payments
hereunder free and clear of any deduction, offset, defense, claim or
counterclaim of any kind.
6. REINSTATEMENT. If any or all payments or proceeds of property
securing any or all of the Obligations made from time to time to Lender with
respect to any obligation hereby guaranteed are at any time recovered from, or
repaid by, Lender in whole or in part in any bankruptcy, reorganization,
receivership, insolvency or similar case or proceeding instituted by or against
Borrower, this Agreement shall continue to be fully applicable to (or, as the
case may be, reinstated to be applicable to) such obligation to the same extent
as if the recovered or repaid payment(s) or proceeds had never been originally
paid to Lender.
7. CUMULATIVE REMEDIES. All rights and remedies hereunder and under
the Loan Agreement, and related agreements, are cumulative and not alternative,
and Lender may proceed in any order from time to time against Borrower, the
Guarantor and/or any other Person or Persons liable for any or all of the
Obligations and their respective assets. Lender shall not have any obligation to
proceed at any time or in any manner against, or exhaust any or all of Lender's
rights against, Borrower or any other Person or Persons liable for any or all of
the Obligations prior to proceeding against the Guarantor hereunder.
Notwithstanding anything to the contrary contained in this Agreement, Lender
shall not exercise any of its rights or remedies against Guarantor under this
Agreement, unless and until Guarantor owns (directly or indirectly through his
majority ownership interest in Watertone Holdings, L.P.) less than ten percent
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(10%) of the outstanding common voting stock of Empire Resorts, Inc. ("Empire")
or, prior to the closing of the Consolidation Transaction, less than ten percent
(10%) of the outstanding common voting stock or membership interest, as the case
may be, of Empire and Catskill Development, LLP, on a combined basis.
Immediately upon such an occurrence, all of Lender's rights and remedies under
this Agreement shall be immediately available to Lender (upon the terms and
conditions set forth in this Agreement), without further notice to Guarantor.
8. SUBROGATION. Any and all rights of any nature of the Guarantor to
subrogation, reimbursement or indemnity and any right of the Guarantor to
recourse to any assets or property of, or payment from, Borrower or any other
Person or Persons liable for any or all of the Obligations as a result of any
payments made or to be made hereunder for any reason shall be unconditionally
subordinated to all of Lender's rights under the Loan Agreement and the
Guarantor shall not at any time exercise any of such rights unless and until all
of the Obligations have been unconditionally paid in full. Any payments received
by the Guarantor in violation of this Section 7 shall be held in trust for and
immediately remitted to Lender
9. TENDER RECORDS. Lender's books and records of any and all of the
Obligations, absent manifest error, shall be prima facie evidence against the
Guarantor of the indebtedness owing or to become owing to Lender hereunder.
10. CONTINUING GUARANTOR. This Agreement shall constitute a
continuing surety obligation with respect to all Obligations from time to time
incurred or arising and shall continue in effect until all Obligations are
indefeasibly paid and satisfied and the liability of the Guarantor under this
Agreement may not be revoked or terminated.
11. SETOFF. The Guarantor agrees that Lender shall have a right of
setoff against any and all property of the Guarantor now or at any time in
Lender's possession, including without limitation deposit accounts, and the
proceeds thereof, as security for the obligations of the Guarantor hereunder.
12. ACCELERATION. If an Event of Default occurs and is continuing
under the Loan Agreement, then all of the Guarantor's liabilities of every kind
or nature to Lender hereunder shall, at Lender's option, become immediately due
and payable and Lender may at any time and from time to time, at Lender's option
(regardless of whether the liability of Borrower or any other Person or Persons
liable for any or all of the Obligations has matured or may then be enforced),
take any and/or all actions and enforce all rights and remedies available
hereunder or under applicable law to collect the Guarantor's liabilities
hereunder.
13. ENFORCEMENT TIMING. Failure or delay in exercising any right or
remedy against the Guarantor hereunder shall not be deemed a waiver thereof or
preclude the exercise of any other right or remedy hereunder. No waiver of any
breach of any provision of this Agreement shall be construed as a waiver of any
subsequent breach or of any other provision.
14. SUCCESSORS AND ASSIGNS. This Agreement shall (a) be legally
binding upon the Guarantor, and the Guarantor's successors and assigns, provided
that the Guarantor's obligations hereunder may not be delegated or assigned
without Lender's prior written consent and (b) benefit any and all of Lender's
successors and assigns.
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15. ENTIRE AGREEMENT. This Agreement embodies the whole agreement
and understanding of the parties hereto relative to the subject matter hereof.
No modification or waiver of any provision hereof shall be enforceable unless
approved by Lender in writing.
16. GOVERNING LAW AND JURY TRIAL. THIS AGREEMENT SHALL IN ALL
RESPECTS BE INTERPRETED, CONSTRUED AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE
STATE OF NEW YORK. THE GUARANTOR IRREVOCABLY KNOWINGLY AND VOLUNTARILY (I)
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR
THE PURPOSES OF ANY LITIGATION OR PROCEEDING HEREUNDER OR CONCERNING THE TERMS
HEREOF AND (II) WAIVES THE RIGHT TO A JURY TRIAL WITH RESPECT TO ANY LITIGATION,
CLAIMS OR PROCEEDING HEREUNDER OR CONCERNING THE TERMS HEREOF OR OTHERWISE IN
CONNECTION WITH THE GUARANTOR'S DEALINGS WITH LENDER.
17. NOTICES.
(a) In any action or proceeding brought by Lender to enforce the
terms hereof, the Guarantor waives personal service of the summons, complaint,
and any motion or other process, and agrees that notice thereof may be served
(i) in person, (ii) by registered or certified mail, return receipt requested,
or (iii) by nationally recognized overnight courier (in the case of (i) above,
on the date of delivery, in the case of (ii) above, on the 3rd day after deposit
in the U.S. mail, and in the case of (iii) above, on the Business Day following
delivery to the courier). Service may be made at the address of the Guarantor on
the signature page hereof or such other address at which Guarantor is then
located.
(b) Any and all notices which may be given to the Guarantor by
Lender hereunder shall be sent to the Guarantor at the address of the Guarantor
set forth on the signature page hereof (or such other address at which the
Guarantor is then located) and shall be deemed given to and received (on the
date delivered) by the Guarantor if sent by facsimile transmission or if sent in
the manner provided for service of process in paragraph 17(a) above.
18. MAXIMUM LIABILITY. To the extent that applicable law otherwise
would render any of the obligations of Guarantor hereunder invalid or
unenforceable, Guarantor's obligations hereunder shall be limited to the maximum
amount which does not result in such invalidity or unenforceability, provided,
however, that Guarantor's obligations hereunder shall be presumptively valid and
enforceable to their fullest extent in accordance with the terms hereof, as if
this Section 18 were not a part of this Agreement.
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19. SEVERABILITY. The invalidity or unenforceability of any
provision hereof shall not affect the remaining provisions which shall remain in
full force and effect.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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DATED the date and year first above written.
By: /s/ Xxxxxx X. Xxxxxx (Seal)
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Xxxxxx X. Xxxxxx
Address: __________________________
__________________________
__________________________
[Signature page to Guaranty Agreement]
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