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Exhibit 10.3
GUARANTY AGREEMENT
AGREEMENT made as of this 21st day of May, 1999, by the undersigned for
the benefit of BNC NATIONAL BANK OF MINNESOTA (herein, with its participants,
successors and assigns, called "LENDER").
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and to induce Lender from time to time to make
one or more loans or extend other financial accommodations at the discretion of
the Lender to CONCORDE CRIPPLE CREEK, INC., a Colorado corporation ("BORROWER"),
the undersigned hereby guarantee(s) and agree(s) as follows:
The undersigned hereby absolutely and unconditionally guarantee(s) to
Lender the full and prompt payment when due (whether on demand or at a stated
maturity or earlier by reason of acceleration or otherwise) of any and all
present and future debts, liabilities and obligations owed to Lender by any
Borrower; and the undersigned represent(s), warrant(s) and agree(s) that:
1. The debts, liabilities and obligations guaranteed hereby
(collectively referred to herein as the "Indebtedness") shall include, but shall
not be limited to, debts, liabilities and obligations of any Borrower arising
out of loans, credit transactions, financial accommodations, discounts,
purchases of property or other transactions with any Borrower or for any
Borrower's account or out of any other business transaction, or event, owed to
Lender or owed to others by reason of participation granted to or interests
acquired or created for or sold to them by Lender, in each case whether now
existing or hereafter arising, whether arising directly in a transaction or
event involving Lender or acquired by Lender from another by purchase or
assignment or as collateral security, whether owed by any Borrower as drawer,
maker, endorser, accommodation party, guarantor, principal, surety or as a
member of any partnership, syndicate, association or group or in any other
capacity, whether absolute or contingent, direct or indirect, primary or
secondary, joint, several or joint and several, secured or unsecured, due or not
due, liquidated or unliquidated, arising by agreement or imposed by law or
otherwise.
2. No act or thing need occur to establish the liability of the
undersigned hereunder, and no act or thing, except full payment and discharge of
all Indebtedness, shall in any way exonerate the undersigned or modify, reduce,
limit or release the liability of the undersigned hereunder. This is an
absolute, unconditional and continuing guaranty of payment of the Indebtedness
and shall continue to be in force and be binding upon the undersigned, whether
or not all Indebtedness is paid in full, until this Guaranty is revoked
prospectively as to future transactions, by written notice actually received by
Lender, and such revocation shall not be effective as to Indebtedness existing
or committed for at the time of actual receipt of such notice by Lender, or as
to any renewals, extensions and refinancings thereof. Any adjudication of
bankruptcy or death or disability or incapacity of the undersigned shall not
revoke this guaranty, except upon actual receipt of written notice thereof by
Lender and then only prospectively, as to future transactions, as herein set
forth.
3. If the undersigned shall die, shall be or become insolvent or shall
initiate or have initiated against the undersigned any act, process or
proceeding under the United States Bankruptcy Code or any other bankruptcy,
insolvency or reorganization law or otherwise for the
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modification or adjustment of the rights of creditors, then the undersigned will
forthwith pay to Lender, the full amount of all Indebtedness then outstanding,
whether or not any Indebtedness is then due and payable.
4. Until all of the Indebtedness and the obligations of the undersigned
hereunder have been paid in full, the undersigned shall not have and waives any
right or subrogation to any of the rights of Lender against any Borrower, any
other guarantor, maker or endorser, and waives its rights to any reimbursement,
contribution, recourse and indemnity therefrom; waives any right to enforce any
remedy which Lender now has or may hereafter have against any Borrower, and any
other guarantor, maker or endorser; and waives any benefit of, and any other
right to participate in, any collateral security for the Indebtedness or any
guaranty of the Indebtedness now or hereafter held by Lender.
5. If any payment received and applied by Lender to Indebtedness is
thereafter set aside, recovered or required to be returned for any reason
(including, without limitation, the bankruptcy, insolvency or reorganization of
any Borrower or such other person), the Indebtedness to which such payment was
applied shall, for the purposes of this Guaranty, be deemed to have continued in
existence, notwithstanding such application, and this Guaranty shall be
enforceable as to such Indebtedness as fully as if such application had not been
made.
6. Lender shall not be obligated by reason of its acceptance of this
Guaranty to engage in any transactions with or for any Borrower. Whether or not
any existing relationship between the undersigned and any Borrower has been
changed or ended and whether or not this Guaranty has been revoked in accordance
with Paragraph 2, Lender may enter into transactions resulting in the creation
or continuance of Indebtedness and may otherwise agree, consent to, or suffer
the creation or continuance of any Indebtedness, without any consent or approval
by the undersigned and without any prior or subsequent notice to the
undersigned. The liability of the undersigned shall not be affected or impaired
by any of the following acts or things (which Lender is expressly authorized to
do, omit or suffer from time to time, both before and after revocation of this
Guaranty, without consent or approval by or notice to the undersigned): (i) any
acceptance of collateral security, guarantors, accommodation parties or sureties
for any or all Indebtedness; (ii) one or more extensions or renewals of
Indebtedness (whether or not for longer than the original period) or any
modification of the interest rates, maturities or other contractual terms
applicable to any Indebtedness; (iii) any waiver or indulgence granted to any
Borrower, any delay or lack of diligence in the enforcement of Indebtedness, or
any failure to institute proceedings, file a claim, give any required notices or
otherwise protect any Indebtedness; (iv) any full or partial release of,
compromise or settlement with, or agreement not to xxx any Borrower or any other
guarantor or other person liable in respect of any Indebtedness; (v) any
release, surrender, cancellation or other discharge of any evidence of
Indebtedness or the acceptance of any instrument in renewal or substitution
therefor; (vi) any failure to obtain collateral security (including rights of
setoff) for Indebtedness, or to see to the proper or sufficient creation and
perfection thereof, or to establish the priority thereof, or to preserve,
protect, insure, care for, exercise or enforce any collateral security; or any
modification, alteration, substitution, exchange, surrender, cancellation,
termination, release or other change, impairment, limitation, loss or discharge
of any collateral security; (vii) any collection, sale, lease or other
disposition of, or any other foreclosure or enforcement of or realization on,
any collateral security; (viii) any assignment, pledge or other transfer of any
Indebtedness or any evidence thereof; (ix) any manner, order or method of
application of any payments or credits
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upon Indebtedness. The undersigned waive(s) any and all defenses and discharges
available to a surety, guarantor, or accommodation co-obligor, dependent on its
character as such.
7. The undersigned waive(s) any and all defenses, claims, setoffs, and
discharges of any Borrower, or any other obligor, pertaining to Indebtedness,
except the defense of discharge by payment in full. Without limiting the
generality of the foregoing, the undersigned will not assert against Lender any
defense of waiver, release, discharge in bankruptcy, statute of limitations, res
judicata, statute of frauds, anti-deficiency statute, fraud, incapacity,
minority, usury, illegality or unenforceability which may be available to any
Borrower or any other person liable in respect of any Indebtedness, or any
setoff available against Lender to any Borrower or any such other person,
whether or not on account of a related transaction, and the undersigned
expressly agree(s) that the undersigned shall be and remain liable for any
deficiency remaining after foreclosure of any mortgage or security interest
securing Indebtedness, whether or not the liability of any Borrower or any other
obligor for such deficiency is discharged pursuant to statute or judicial
decision. The liability of the undersigned shall not be affected or impaired by
any voluntary or involuntary liquidation, dissolution, sale or other disposition
of all or substantially all the assets, marshaling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of, or other similar
event or proceeding affecting any Borrower or any of its assets. The undersigned
will not assert against Lender any claim, defense or setoff available to the
undersigned against any Borrower.
8. The undersigned waive(s) presentment, demand for payment, notice of
dishonor or nonpayment, and protest of any instrument evidencing Indebtedness.
Lender shall not be required first to resort for payment of the Indebtedness to
any Borrower or other persons, or their properties, or first to enforce, realize
upon or exhaust any collateral security for Indebtedness, before enforcing this
Guaranty.
9. The undersigned will pay or reimburse Lender for all costs and
expenses (including reasonable attorneys' fees and legal expenses) incurred by
Lender in connection with the collection of any Indebtedness or the enforcement
of this Guaranty.
10. This Guaranty shall be enforceable against each person signing this
Guaranty, even if only one person signs and regardless of any failure of other
persons to sign this Guaranty or to otherwise guaranty any of the any Borrower's
debts, liabilities or obligations to Lender. All agreements and promises herein
shall be construed to be, and are hereby declared to be, joint and several in
each and every particular with respect to the Guarantor and any other guarantors
of the Indebtedness and shall be fully binding upon and enforceable against any
or all such guarantors. This Guaranty shall be binding upon the undersigned, and
the heirs, successors and assigns of the undersigned and shall inure to the
benefit of Lender and its respective participants, successors and assigns.
Except to the extent otherwise required by law, this Guaranty and the
transaction evidenced hereby shall be governed by the substantive laws of the
State of Minnesota. If any provision or application of this Guaranty is held
unlawful or unenforceable in any respect, such illegality or unenforceability
shall not affect other provisions or applications which can be given effect, and
this Guaranty shall be construed as if the unlawful or unenforceable provision
or application had never been contained herein or prescribed hereby. All
representations and warranties contained in this Guaranty or in any other
agreement between the undersigned and Lender shall survive the execution,
delivery and performance of this Guaranty and the creation and payment of the
Indebtedness. This Guaranty may not be waived, modified, invalidated,
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terminated or released or otherwise changed except by a writing signed by
Lender. The Guaranty shall be effective whether or not accepted in writing by
Lender and the undersigned waive(s) notice of the acceptance of this Guaranty by
Lender.
IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered
by the undersigned on the day and year first above written.
WITNESS: CONCORDE GAMING CORPORATION,
a Colorado corporation
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxx
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Its: President
Name: Xxxxxx X. Xxxxxx
Address: 0000 Xxxx Xx.
Xxxxx Xxxx, XX
