EXHIBIT 10.18
GUARANTY
THIS GUARANTY ("Guaranty"), dated as of the 20th day of
October, 1997, is executed
and delivered by YARLOW, INC., a Nevada corporation ( Yarlow ),
XXXXXX X. XXXXXXXXX
( Xxxxxxxxx ), XXXXXXX X. XXXXXXX ( Xxxxxxx ), and XXXXXXX X.
XXXXXXXX
( Xxxxxxxx )(collectively, "Guarantors"), in favor of
INTERNATIONAL SPORTS WAGERING,
INC., a Delaware corporation ("Beneficiary"), and in light of the
following:
WHEREAS, Yarlow owns and operates a casino business on
certain real property located
in Henderson, Nevada, which is owned by T & D, a Nevada General
Partnership ( T & D ), and
Yarbrough, Sommers, and Xxxxxxxx are shareholders in Yarlow; and
WHEREAS, T & D desires to borrow from Beneficiary a loan in
the amount of Fifty
Thousand and No/100 Dollars ($50,000.00)( Loan ), which T & D
intends to loan to Yarlow, for
the payment of federal taxes, interest and/or penalties resulting
in substantial benefits to the
Guarantors; and
WHEREAS, Beneficiary is only willing to extend the Loan to T
& D on the condition that
Guarantors guarantee T & D s performance under the promissory
note evidencing the Loan, in the
manner herein provided;
NOW, THEREFORE, in order to induce Beneficiary to extend the
Loan to T & D and in
consideration of the promises herein contained and for other good
and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Guarantors hereby agree as follows:
1. Guarantied Obligations. Guarantors hereby irrevocably,
unconditionally, and jointly
and severally guarantee to Beneficiary, as and for each of the
Guarantors' own debt, throughout the
entire period in which any monies shall remain due and owing from
T & D to Beneficiary under the
Loan, the punctual payment of any and all amounts due and owing
by T & D to Beneficiary under
the Loan and the faithful and timely performance of all other
obligations and duties of T & D under
the promissory note evidencing the Loan ( Note ) and under the
Short Form Deed of Trust and
Assignment of Rents ( Deed of Trust ), dated October 20, 1997,
from Maker, as Trustor, to Nevada
Title Company, as Trustee for the benefit of Holder Deed of Trust
securing the same (collectively,
"Guarantied Obligations"). Notwithstanding any other provision
hereof, is understood and agreed
by the Guarantors that, to the extent that the Deed of Trust is
not duly executed or recorded, or is for
any reason whatsoever reconveyed, annulled, voided, or otherwise
rendered or deemed
unenforceable, other than for the repayment in full of the Note
and Loan the Guarantors obligations
hereunder shall remain in full force and effect as to all other
Guarantied Obligations. The
Guarantors further guarantee that the proceeds of the Loan, along
with $25,000.00 of additional
funds, shall be paid to the Internal Revenue Service for federal
taxes, interest and/or penalties. It is
the intent of Guarantors that the guaranty set forth herein shall
be a guaranty of payment and
performance and not a guaranty of collection.
2. Scope and Nature of Guaranty. This Guaranty shall be
for the entire term in which
any amounts of principal and interest shall remain due and owing
to Beneficiary under the Note and
Loan and includes Guarantied Obligations arising under any
extensions, modifications, amendments,
or changes to the Note or Deed of Trust, regardless of whether
such shall have the effect of
continuing, compromising, extending, increasing, modifying,
releasing, or renewing the Guarantied
Obligations, changing the payment terms or other terms and
conditions thereof, or creating new or
additional Guarantied Obligations after prior Guarantied
Obligations have been satisfied in whole
or in part. To the maximum extent permitted by law, Guarantors
hereby waive any right to revoke
this Guaranty as to any future amounts owed by T & D under the
Note and Loan. If such a
revocation is effective notwithstanding the foregoing waiver,
Guarantors acknowledge and agree that
(a) no such revocation shall be effective until written notice
thereof has been received and
acknowledged by Beneficiary, (b) no such revocation shall apply
to any Guarantied Obligations in
existence on such date (including any subsequent continuation,
extension, or renewal thereof, or
change in the payment terms or other terms and conditions thereof
to the extent permitted by law),
(c) no such revocation shall apply to any Guarantied Obligations
made or created after such date to
the extent made or created pursuant to a legally binding
commitment of Beneficiary in existence on
the date of such revocation, (d) no payment by Guarantors, by T &
D, or from any other source prior
to the date of such revocation shall reduce the maximum
obligation of Guarantors hereunder, and
(e) any payment by T & D or from any source other than Guarantors
subsequent to the date of such
revocation shall first be applied to that portion of the
Guarantied Obligations as to which the
revocation is effective and which is not, therefore, guarantied
hereunder.
3. Performance under this Guaranty. In the event that T &
D fails to make any payment
or performance of any Guarantied Obligations on or before the due
date thereof, Guarantors
immediately shall cause such payment or performance to be made
and all other obligations under
the Note and Loan to be performed, kept, observed, or fulfilled.
4. Primary Obligations. This Guaranty is a primary and
original obligation of
Guarantors, is not merely the creation of a surety relationship,
and is an absolute and unconditional
guaranty of payment and performance, which shall remain in full
force and effect without respect
to future changes in conditions, including any change of law or
any invalidity or irregularity with
respect to the Note. Guarantors agree that they are directly,
and jointly and severally with each other
and with any other guarantor of the Guarantied Obligations,
liable to Beneficiary, that the obligations
of Guarantors hereunder are independent of the obligations of T
& D or any other guarantor, and
that a separate action may be brought against Guarantors, whether
such action is brought against T
& D or any other guarantor, or whether T & D or any such other
guarantor is joined in such action.
Guarantors agree that their liability hereunder shall be
immediate and shall not be contingent upon
the exercise or enforcement by Beneficiary of whatever remedies
it may have against T & D or any
other guarantor, or the enforcement of any lien, realization upon
any security, or enforcement of any
assignment of revenues that Beneficiary may at any time possess.
Guarantors agree that any release
that may be given by Beneficiary to T & D or any other guarantor
shall not release Guarantors.
Guarantors consent and agree that Beneficiary shall be under no
obligation to marshal any property
or assets of T & D or of any other guarantor in favor of
Guarantors, or against or in payment of any
or all of the Guarantied Obligations.
5. Waivers.
(a) Guarantors hereby waive: (i) notice of acceptance
hereof; (ii) notice of the creation,
extension, or existence of any Guarantied Obligations; (iii)
notice of the amount of the Guarantied
Obligations, subject, however, to Guarantors' right to make
inquiry of Beneficiary to ascertain the
amount of the Guarantied Obligations at any reasonable time;
(iv) notice of any adverse change in
the financial condition of T & D or of any other fact that might
increase Guarantors' risk hereunder;
(v) notice of presentment for payment, demand, protest, and
notice thereof as to the Note or any
other instrument; (vi) notice of any default or event of default
(except if such notice is specifically
required to be given to Guarantors under this Guaranty or any
other document to which Guarantors
are parties) and demands to which Guarantors might otherwise be
entitled.
(b) To the fullest extent permitted by applicable law,
Guarantors waive the right by statute
or otherwise to require Beneficiary to institute suit against T &
D or to exhaust any rights or
remedies that Beneficiary has or may have against T & D. In this
regard, Guarantors agree that they
are bound to the payment of each and all Guarantied Obligations,
whether now existing or hereafter
accruing, as fully as if such Guarantied Obligations were
directly owing to Beneficiary by
Guarantors. Guarantors further waive any defense arising by
reason of any disability or other
defense (other than the defense that the Guarantied Obligations
have been indefeasibly paid) of T
& D or by reason of the cessation from any cause whatsoever of
the liability of T & D in respect
thereof.
(c) To the maximum extent permitted by law, the Guarantors
hereby waive: (i) any rights
to assert against Beneficiary any defense (legal or equitable),
set-off, counterclaim, or claim that
Guarantors may now or at any time hereafter have against T & D or
any other party liable to
Beneficiary; (ii) any defense, set-off, counterclaim, or claim,
of any kind or nature, arising directly
or indirectly from the present or future lack of perfection,
sufficiency, validity, or enforceability of
the Guarantied Obligations or any security therefor; (iii) any
defense arising by reason of any claim
or defense based upon an election of remedies by Beneficiary;
(iv) the benefit of any statute of
limitations affecting Guarantors' liability hereunder or the
enforcement thereof, and any act that shall
defer or delay the operation of any statute of limitations
applicable to Guarantors' liability hereunder;
and (v) any defense or benefit that may be derived from or
afforded by law that limits the liability
of or exonerates guaranties or sureties.
(d) Guarantors also hereby waive any claim, right or remedy
that Guarantors may now have
or hereafter acquire against T & D that arises hereunder and/or
from the performance by Guarantors
hereunder, including without limitation any claim, remedy or
right of subrogation, reimbursement,
exoneration, contribution, indemnification, or participation in
any claim, right or remedy that
Beneficiary has or hereafter acquires, whether or not such claim,
right or remedy arises in equity,
under contract, by statute, under common law or otherwise.
6. Releases. Guarantors consent and agree that, without
notice to or by Guarantors and
without affecting or impairing the obligations of Guarantors
hereunder, Beneficiary may, by action
or inaction, compromise or settle, extend the period of duration
or the time for the payment, or
discharge the performance of, or may refuse to, or otherwise not
enforce, or may, by action or
inaction, release all or any one or more parties to the
Guarantied Obligations, or may grant other
indulgences to T & D in respect thereof, or may amend or modify
in any manner and at any time (or
from time to time) Note or the Deed of Trust (as described in
Section 7 hereof), or may, by action
or inaction, release or substitute any other guarantor, if any,
of the Guarantied Obligations, or may
enforce, exchange, release, or waive, by action or inaction, any
security for the Guarantied
Obligations or any other guaranty of the Guarantied Obligation,
or any portion thereof.
7. Deed of Trust. The Note and Loan shall also be secured
by the Deed of Trust
Nevertheless, Guarantors agree that Beneficiary may, in its sole
discretion, without notice or demand
and without affecting the liability of Guarantors under this
Guaranty, foreclose pursuant to the terms
of or otherwise enforce the Deed of Trust. Guarantors understand
that the exercise by Beneficiary
of certain rights and remedies contained in the Deed of Trust may
affect or eliminate Guarantors'
right of subrogation against T & D and that Guarantors may,
therefore, incur a partially or totally
non-reimbursable liability hereunder. Nevertheless, Guarantors
hereby authorize and empower
Beneficiary to exercise, in its sole discretion, any rights and
remedies, or any combination thereof,
that may then be available, since it is the intent and purpose of
Guarantors that the obligations
hereunder shall be absolute, independent, and unconditional under
any and all circumstances.
Notwithstanding any foreclosure under the Deed of Trust, or the
exercise by Beneficiary of any other
legal rights, regardless of how exercised, Guarantors shall
remain bound under this Guaranty,
including their obligation to pay any deficiency following a
foreclosure or any exercise of other
rights.
8. No Election. Beneficiary shall have the right to seek
recourse against Guarantors to
the fullest extent provided for herein and no election by
Beneficiary to proceed in one form of action
or proceeding, or against any party, or on any obligation, shall
constitute a waiver of Beneficiary's
right to proceed in any other form of action or proceeding or
against other parties unless Beneficiary
has expressly waived such right in writing. Specifically, but
without limiting the generality of the
foregoing, no action or proceeding by Beneficiary under any
document or instrument evidencing the
Guarantied Obligations shall serve to diminish the liability of
Guarantors under this Guaranty except
to the extent that Beneficiary finally and unconditionally shall
have realized indefeasible payment,
satisfaction, and performance of all of the Guarantied
Obligations by such action or proceeding.
9. Indefeasible Payment, Satisfaction, and Performance.
The Guarantied Obligations
shall not be considered indefeasibly paid, satisfied, or
performed for purposes of this Guaranty
unless and until (a) all payments under Note and Loan have been
made to Beneficiary and such
payments are no longer subject to any right on the part of any
person whomsoever, including without
limitation T & D, T & D as a debtor in possession, or any trustee
(whether appointed under the
Bankruptcy Code or otherwise) of T & D's assets to invalidate or
set aside such payments or to seek
to recoup the amount of such payments or any portion thereof, or
to declare same to be fraudulent
or preferential, (b) all other obligations under the Note have
been fully satisfied and performed. In
the event that, for any reason, all or any portion of such
payments are set aside or restored, whether
voluntarily or involuntarily, after the making thereof, the
obligation or part thereof intended to be
satisfied thereby shall be revived and continued in full force
and effect as if said payment or
payments had not been made and Guarantors shall be liable for the
full amount that is required to
be repaid, plus any and all costs and expenses (including
attorneys' fees and expenses) payable by
Beneficiary in connection therewith.
10. Financial Condition of T & D. Guarantors represent
and warrant to Beneficiary that
they are currently informed of the financial condition of T & D
and of all other circumstances that
a diligent inquiry would reveal and that bear upon the risk of
nonpayment or nonperformance of the
Guarantied Obligations. Guarantors further represent and warrant
to Beneficiary that they have read
and understand the terms and conditions of the Note, of this
Guaranty, and of each and all of the
documents referenced in this Guaranty. Guarantors hereby
covenant that they will continue to keep
themselves informed of T & D's financial condition, the financial
condition of other guarantors, if
any, and of all other circumstances that bear upon the risk of
nonpayment or nonperformance of the
Guarantied Obligations.
11. Subordination. Any indebtedness of T & D now or
hereafter held by Guarantors is
hereby subordinated to the indebtedness of T & D to Beneficiary;
and from and after the occurrence
of a default or an event of default under the Note and for so
long as such a default or event of default
shall continue, such indebtedness of T & D to Guarantors, if
Beneficiary so requests, shall be
collected, enforced and received by Guarantors as trustee for T &
D and paid over to Beneficiary on
account of the indebtedness of T & D to Beneficiary, but without
reducing or affecting in any
manner the liability of Guarantors under the other provisions of
this Guaranty.
12. Method and Application of Payments. All payments to
be made hereunder by
Guarantors shall be made in lawful money of the United States of
America at the time of payment,
shall be made in immediately available funds, and shall be made
without deduction (whether for
taxes or otherwise) or offset. All payments made by Guarantors
hereunder shall be applied as
follows: first, to all reasonable costs and expenses (including
attorneys' fees) incurred by
Beneficiary in enforcing this Guaranty or in collecting the
Guarantied Obligations; second, to all
accrued and unpaid interest, premium, if any, and fees owing to
Beneficiary constituting Guarantied
Obligations; and third, to the balance of the Guarantied
Obligations.
13. Negative Covenants. Unless and until the Guarantied
Obligations are fully satisfied,
Guarantors agree that they shall not, without the express written
consent of Beneficiary:
(a) Sell, transfer, assign, or otherwise dispose of more
than twenty-five percent (25%) of
their respective assets (as determined by fair market value),
whether by one transaction or by a series
of transactions, except as expressly provided herein;
(b) Actually or constructively remove any material portion
of Guarantors' assets to a location
outside of the continental United States of America;
(c) Create, incur, assume, or suffer to exist, any lien,
security interest, or encumbrance upon
or with respect to any of its assets, now owned or hereafter
acquired, except for liens or
encumbrances in favor of Beneficiary.
14. Costs to Prevailing Party. If any action or
proceeding is brought by any party against
any other party under this Guaranty, the prevailing party shall
be entitled to recover such costs and
attorneys' fees and expenses as the court in such action or
proceeding may adjudge reasonable.
15. Notices. Unless otherwise specifically provided
herein, any notice or other
communication herein required or permitted to be given shall be
in writing and may be personally
served, sent by telefacsimile, telexed, or sent by courier
service or United States mail and shall be
deemed to have been given when delivered in person or by courier
service, upon receipt of a
telefacsimile or telex or four (4) business days after deposit in
the United States mail (registered or
certified, with postage prepaid and properly addressed). For the
purposes hereof, the addresses of
the parties hereto (until notice of a change thereof is delivered
as provided in this Section 15) shall
be as set forth below, designated by such party in a written
notice to all of the other parties:
If to Guarantors: Yarlow, Inc.
000 X. Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxx 00000
Xxxxxx X. Xxxxxxxxx
000 X. Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxx 00000
Xxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxx.
Xxxxxxx Xxxxxxx, Xxxxxx 00000
Xxxxxxx X. Xxxxxxxx
000 Xxxxxxxxx Xxxx.
Xxxxxxx Xxxxxxx, Xxxxxx 00000
With a copy to:
____________________________________
____________________________________
____________________________________
If to Beneficiary: International Sports Wagering, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Att n: Xxxxx Xxxxxx
With a copy to: Xxxxxxx Xxxxxx
000 Xx. Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxx 00000
Att n: Xxxxx X. Xxxxxxxxxxx, Esq.
16. Cumulative Remedies. No remedy under this Guaranty,
under the Note, under the
Deed of Trust, or under any other document or instrument related
thereto is intended to be exclusive
of any other remedy, but each and every remedy shall be
cumulative and in addition to any and every
other remedy given under this Guaranty, under the Note, under the
Deed of Trust, or under such
other documents or instruments, as well as all those provided at
law or in equity. No delay or
omission by Beneficiary to exercise any right under this Guaranty
shall impair any such right nor
be construed to be a waiver thereof. No failure on the part of
Beneficiary to exercise, and no delay
in exercising, any right under this Guaranty shall operate as a
waiver thereof; nor shall any single
or partial exercise of any right under this Guaranty preclude any
other or further exercise thereof or
the exercise of any other right.
17. Severability of Provisions. Any provision of this
Guaranty that is prohibited or
unenforceable under applicable law, shall be ineffective only to
the extent of such prohibition or
unenforceability, without invalidating the remaining provisions
hereof.
18. Entire Agreement; Amendments. This Guaranty, together
with any Exhibits hereto,
constitute the entire agreement between Guarantors and
Beneficiary pertaining to the subject matter
contained herein. This Guaranty may not be altered, amended, or
modified, nor may any provisions
hereof be waived or noncompliance therewith consented to, except
by means of a writing executed
by Guarantors and Beneficiary. Any such alteration, amendment,
modification, waiver, or consent
shall be effective only to the extent specified therein and for
the specific purpose for which given.
No course of dealing and no delay or waiver of any right or
default under this Guaranty shall be
deemed a waiver of any other, similar or dissimilar, right or
default or otherwise prejudice the rights
and remedies hereunder.
19. Successors and Assigns. This Guaranty shall be
binding upon Guarantors and their
successors and assigns and shall inure to the benefit of the
successors and assigns of Beneficiary;
provided, however, Guarantors shall not assign this Guaranty or
delegate any of its duties hereunder
without Beneficiary's prior written consent and any unconsented
to assignment shall be absolutely
void. In the event of any assignment or other transfer of rights
by Beneficiary, the rights and
benefits herein conferred upon Beneficiary shall automatically
extend to and be vested in such
assignee or other transferee.
20. Construction. Unless the context of this Guaranty
clearly requires otherwise,
references to the plural include the singular, references to the
singular include the plural, the part
includes the whole, the term "including" is not limiting, and the
term "or" has the inclusive meaning
represented by the phrase "and/or." The words "hereof,"
"herein," "hereby," "hereunder," and other
similar terms refer to this Guaranty as a whole and not to any
particular provision of this Guaranty.
Any reference in this Guaranty to any documents includes any and
all alterations, amendments,
extensions, modifications, renewals, or supplements thereto or
thereof, as applicable.
21. Time of Essence. Time is of the essence of this
Guaranty.
22. Choice of Law and Venue; Service of Process. The
validity of this Guaranty, its
construction, interpretation, and enforcement, and the rights of
Guarantors and Beneficiary, shall be
determined under, governed by, and construed in accordance with
the internal laws of the State of
Nevada, without regard to principles of conflicts of law. All
judicial proceedings brought against
Guarantors with respect to this Guaranty may be brought in any
state or federal court of competent
jurisdiction in the state of Nevada, and by execution and
delivery of this Guaranty, Guarantors
accept, for themselves and in connection with their assets,
generally and unconditionally, the
nonexclusive jurisdiction of the aforesaid courts, and
irrevocably agree to be bound by any final
judgment rendered thereby in connection with this Guaranty from
which no appeal has been taken
or is available.
23. Waiver of Jury Trial. To the maximum extent permitted
by law or equity,
Guarantors and Beneficiary each mutually hereby expressly waives
any right to trial by jury of any
action, cause of action, claim, demand, or proceeding arising
under or with respect to this Guaranty,
or in any way connected with, related to, or incidental to the
dealings of Guarantors and Beneficiary
with respect to this Guaranty, or the transactions related
hereto, in each case whether now existing
or hereafter arising, and irrespective of whether sounding in
contract, tort, or otherwise. To the
maximum extent permitted by law or equity, Guarantors and
Beneficiary each mutually hereby
agrees that any such action, cause of action, claim, demand, or
proceeding shall be decided by a
court trial without a jury and that the defending party may file
an original counterpart of this section
with any court or other tribunal as written evidence of the
consent of the complaining party to the
waiver of its right to trial by jury.
24. Counterparts. This Guaranty may be executed in any
number of counterparts, which
when so executed and delivered shall be deemed an original, and
such counterparts shall constitute
one and the same Guaranty. Notwithstanding the foregoing, in the
event that any one or more of the
Guarantors fails to sign this Guaranty for any reason whatsoever,
the remaining Guarantor(s) shall
nevertheless be bound by the terms and conditions hereof. A duly
executed facsimile of this
Guaranty may be enforced as if an original hereof.
IN WITNESS WHEREOF, the undersigned have executed and
delivered this Guaranty as
of the day and year first written above.
"GUARANTORS"
YARLOW, INC., a Nevada
corporation
By:/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, President
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx
This Guaranty is accepted this 20th day of October, 1997.
BENEFICIARY
INTERNATIONAL SPORTS WAGERING, INC.,
a Delaware corporation
By:/s/ Xxxxx Xxxxxx
Its: Chairman of the Board
STATE OF NEVADA )
) ss.
COUNTY OF XXXXX )
This instrument was acknowledged before me on the 20th day
of October, 1997, by Xxxxxx
X. Xxxxxxxxx, individually and as President of Yarlow, Inc..
/s/ Xxxx X. Xxxxxxx
Notary Public
(My commission expires
1/15/99)
STATE OF NEVADA )
) ss.
COUNTY OF WASHOE )
This instrument was acknowledged before me on the 20th day
of October, 1997, by Xxxxxxx
X. Xxxxxxx.
/s/ Xxxxx X. Xxxxx
Notary Public
(My commission expires
4/21/01)
STATE OF NEVADA )
) ss.
COUNTY OF XXXXX )
This instrument was acknowledged before me on the __________
day of
__________________, 1997, by Xxxxxxx X. Xxxxxxxx.
Notary Public
STATE OF NEVADA )
) ss.
COUNTY OF XXXXX )
This instrument was acknowledged before me on the __________
day of
__________________, 1997, by ____________________, as President
of International Sports
Wagering, Inc..
Notary Public
(My commission
expires________)
