HomeMy WebLinkAboutGuarantyGUARANTY
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 Ag.reement dated September 26, 1997, the Second
Amendment to Use Agreement dated p"2001,and the Third Amendment to Use
Agreement dated JU,a, "Use 2002 (collectively, the Agreement"), and under the
Valet Parking Concession Agreement dated December 8, 1998, as amended by the
Amendment to Valet Parking Concession Agreement dated .jNe 47 , 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)
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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
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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.
GUARANTOR 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 Gaming Corporation, a Colorado corporation
c/o Mr. Jerry Baum
3290 Lien Street
Rapid City, South Dakota 57702
With a copy to:
Lucia A. Dougherty, Esq.
Greenberg Traurig
1221 Brickell Avenue, 22nd Floor
Miami, Florida 33131
As to Trust:
Mr. Timothy F. Schmand
Interim Executive Director
301 North Biscayne Boulevard
Miami, Florida 33132
With a copy to:
Mr. Carlos A. Gimenez, City Manager
City of Miami
444 S.W. 2nd Avenue
10th Floor
Miami, Florida 33130
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With a copy to:
Alejandro Vilarello, Esq.
City Attorney
City of Miami
444 S.W. 21'd Avenue
9t' Floor
Miami, Florida 33130
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, Guarantor 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:
Print N
Title: —Pros. j r.si
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Executed on bf 2 7 , 2002
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