EXHIBIT 10.27
GUARANTY
FOR VALUABLE CONSIDERATION, Concorde Gaming Corporation, a Colorado corporation,
("Guarantor") hereby unconditionally guarantees to Bayfront Park Management
Trust, a limited agency and instrumentality of the City of Miami ("Trust"), and
to the City of Miami, a municipal corporation of the State of Florida ("City"),
the full and prompt performance and full and prompt payment of any and all
obligations and indebtedness, whether monetary or non-monetary in nature, of
Concorde Cruises, Inc., successor by operation of law to Bayfront Ventures, a
Florida general partnership (collectively referred to herein as "User"), under
the Use Agreement dated June 25, 1997, as amended by the Amendment to Use
Agreement dated September 26, 1997, the Second Amendment to Use Agreement dated
September, 2001, and the Third Amendment to Use Agreement dated June 27, 2002
(collectively, the "Use Agreement"), and under the Valet Parking Concession
Agreement dated December 8, 1998, as amended by the Amendment to Valet Parking
Concession Agreement dated June 27, 2002 (together, the "Parking Agreement", and
collectively with the Use Agreement, as each may be further amended from time to
time, the "Amended Agreements"). (Copies of the Amended Agreements are attached
hereto as Exhibit A.).
The word "Indebtedness" is used herein in its most comprehensive sense and
includes any and all debts, obligations and liabilities of User to City and/or
Trust arising from the Amended Agreements, whether heretofore, now, or hereafter
made, incurred, or created, whether monetary or non-monetary in nature, and
however arising, whether due or not, absolute or contingent, liquidated or
nonliquidated, and whether User may be liable individually, or jointly with
others, or whether recovery upon such Indebtedness may be or hereafter becomes
barred by any statute of limitations, or whether such Indebtedness may be or
hereafter becomes otherwise unenforceable, and is not limited as to amount or
type, except that Guarantor's liability for monetary obligations shall be
limited to an amount not greater than the sum of the monthly payments due under
the Amended Agreements during a period of Twenty-Four (24) months and
Guarantor's liability for non-monetary obligations shall be limited to those
corresponding to the actual term of the Amended Agreements. In the event
Guarantor elects to terminate the Amended Agreements pursuant to the Early
Termination Procedure contained therein, Guarantor's monetary liability at any
given time during the Notice Period (as defined in the Amended Agreements) shall
be decreased by an amount equal to the total monies actually paid by Guarantor
from the start of the Notice Period through such time.
Guarantor's obligations under this Guaranty (the "Guaranty Obligations") are
independent of the obligations of User. A separate action or actions may be
brought and prosecuted against Guarantor, whether or not action is brought
against User, and User may be joined in any such action or actions. This
Guaranty is a guaranty of payment and not of collection.
Guarantor acknowledges and agrees with Trust and City that each Indebtedness is
a valid and binding obligation of User. Guarantor authorizes Trust and City,
without notice to or demand upon Guarantor, from time to time, and on any number
of occasions, to (a)
renew, amend, compromise, extend, accelerate, reinstate, or otherwise change the
time for payment of the Indebtedness or (b) otherwise change the terms of the
Indebtedness or Guaranty Obligations
Guarantor waives any right to require Trust and City to (a) proceed against
User; (b) proceed against or exhaust any security held from User; or (c) pursue
any other remedy whatsoever available to Trust and City. Guarantor waives any
defense arising by reason of any disability or other defense of User or by
reason of the cessation from any cause whatsoever of User's liability. Guarantor
waives any right to enforce any remedy that Trust or City now has or may
hereafter have against User. Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of dishonor, and
notices of acceptance of this Guaranty and of the existence, creation or
incurrence of new or additional indebtedness and all other defenses to any
action or proceeding to enforce this Guaranty, except the two defenses of actual
payment and actual performance in accordance with the Amended Agreements.
No delay on the part of Trust or of City in the exercise of any right, power or
privilege under the terms of any documentation between (a) Trust and/or City and
(b) User, or under this Guaranty, shall operate as a waiver of any such
privilege, power or right.
Upon default of User on any of its Indebtedness to Trust and City, or if User or
Guarantor shall become insolvent or make an assignment for the benefit of
creditors, or if a petition in bankruptcy or for corporate reorganization or for
an arrangement be filed by or against User or Guarantor (and, in the case of an
involuntary proceeding, not dismissed within sixty (60) days of its listing), or
if there is the appointment of a receiver for User or Guarantor or for their
property, or if a judgment is obtained or warrant of attachment issued against
User or Guarantor, and the same is not bonded off within fifteen (15) days from
entry thereof, then all of the Indebtedness, shall, without notice or demand, at
the option of Trust and City, become immediately due and payable and shall be
paid forthwith by Guarantor.
Guarantor hereby submits to the jurisdiction of the state and federal courts in
the State of Florida for purposes of any action arising from or growing out of
this Guaranty, and further agrees that the venue of any such action shall be
laid in Miami-Dade County.
Guarantor acknowledges that the Trust and the City have been induced by this
Guaranty to re-negotiate the terms of the Amended Agreements with User, and that
Trust and City would not have agreed to such re-negotiation without this
Guaranty.
Guarantor acknowledges and agrees that this Guaranty shall remain in full force
and effect until the expiration or other termination of each of the Amended
Agreements, and until such time as all Indebtedness of User to Trust and City is
paid and/or performed in full.
Guarantor shall furnish to Trust and City, within ninety-five (95) days after
the close of its fiscal year a copy of its Annual Report on Form 10-K containing
the balance sheet of
Guarantor as of the close of such fiscal year and statements of income,
stockholder's equity and cash flows for the year then ended and the opinion
thereon by Guarantor's independent public or certified public accountants.
Financial statements of Guarantor must be prepared in accordance with generally
accepted accounting principles. Each provision hereof is intended to be
severable and the invalidity or illegality of any portion of this Guaranty shall
not affect the validity or legality of the remainder hereof.
XXXXXXXXX HEREBY VOLUNTARILY, KNOWINGLY AND INTENTIONALLY WAIVES ANY AND ALL
RIGHTS TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS
GUARANTY OR CONCERNING THE INDEBTEDNESS AND/OR ANY COLLATERAL THEREFOR OR
PERTAINING TO ANY TRANSACTION RELATED TO OR CONTEMPLATED THEREBY, REGARDLESS OF
WHETHER SUCH ACTION OR PROCEEDING CONCERNS ANY CONTRACTUAL OR TORTIOUS OR OTHER
CLAIM.
Any notice or demand given or made under this Guaranty shall be given or made by
mailing the same by registered or certified mail to the party to whom the notice
or demand is given or made at the address of such party set forth below, or such
other address as such party may hereafter designate by notice given as provided
in this paragraph.
As to Guarantor:
Concord Cruises, Inc., a South Dakota corporation
c/o Xx. Xxxxx Xxxx
0000 Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxx Xxxxxx 00000
With a copy to:
Xxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx Xxxxxxx
0000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
As to Trust:
Xx. Xxxxxxx X. Xxxxxxx
Interim Executive Director
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
With a copy to:
Xx. Xxxxxx Xxxxxxx, City Manager
City of Miami
000 X.X. 0 Xxxxxx
00xx Xxxxx
Xxxxx, Xxxxxxx 00000
This Guaranty may be executed in any number of counterparts, each of which shall
be deemed an original, but all of which together shall constitute but one
instrument.
IN WITNESS WHEREOF, Xxxxxxxxx has executed this Guaranty on the date set forth
below the signature line, to be effective on the date of the Third Amendment to
the Use Agreement and the Amendment to the Valet Parking Concession Agreement.
GUARANTOR:
CONCORDE GAMING CORPORATION
By: /s/ Xxxxx X. Xxxx
-----------------
Print Name: Xxxxx X. Xxxx
Title: President
Executed on June 27, 2002
