Exhibit 10.5
GUARANTY
(Lease)
FOR VALUE RECEIVED, and in order to induce PDS GAMING CORPORATION, a
Minnesota corporation ("Lessor"), to lease to ROYAL STAR ENTERTAINMENT, LLC, a
Delaware limited liability company ("Lessee") the equipment described in that
certain Master Lease Agreement dated January 6, 2005("Lease Agreement") and
Lease Schedule No. 1 thereto dated January 6, 2005("Lease Schedule") (the Lease
Agreement, Lease Schedule and all documents and instruments executed and
delivered to Lessor in connection with the Lease are hereafter collectively the
"Lease") made and executed by the Lessee to the order of Lessor, the undersigned
hereby absolutely and unconditionally guarantees to Lessor the due and prompt
payment by Lessee of all sums due under the Lease, and all other costs incurred,
including reasonable attorneys' fees, in enforcing payment of the Lease or this
Guaranty (all such costs, the indebtedness evidenced by, and the terms and
conditions of the Lease and this Guaranty being herein collectively referred to
as the "Indebtedness Guaranteed");
It is understood and agreed that as a condition of giving this Guaranty,
the undersigned shall be given ten (10) days after receipt of written notice
from Lessor of a default by Lessee in payment of any Indebtedness Guaranteed to
cure such default. If the undersigned fails to cure a default by Lessee within
ten (10) days after receipt of written notice from Lessor of a default by
Lessee, the undersigned does hereby grant to Lessor the right to demand
immediate payment from the undersigned, and the undersigned shall immediately
become liable for, the balance of the Indebtedness Guaranteed upon acceleration
of the Indebtedness Guaranteed by Lessor, without further notice.
The undersigned hereby agrees that the Lessor may from time to time without
notice to or consent of the undersigned and upon such terms and conditions as
the Lessor may deem advisable without affecting this Guaranty (a) release any
maker, surety or other person liable for payment of all or any part of the
Indebtedness Guaranteed; (b) make any agreement extending or otherwise altering
the time for or the terms of payment of all or any part of the Indebtedness
Guaranteed; (c) modify, waive, compromise, release, subordinate, resort to,
exercise or refrain from exercising any right the Lessor may have hereunder,
under the Lease or any other security given for the Indebtedness Guaranteed; (d)
accept additional security or guarantees of any kind; (e) endorse, transfer or
assign its rights under the Lease, to any other party; (f) accept from Lessee or
any other party partial payment or payments on account of the Indebtedness
Guaranteed; (g) from time to time hereafter further loan monies or give or
extend credit to or for the benefit of the Lessee; and (h) release, settle or
compromise any claim of the Lessor against the Lessee, or against any other
person, firm or corporation whose obligation is held by the Lessor as security
for the Indebtedness Guaranteed.
The undersigned hereby unconditionally and absolutely waives (a) any
obligation on the part of the Lessor to protect, secure or insure any of the
security given for the payment of the Indebtedness Guaranteed; (b) the
invalidity or unenforceability of the Indebtedness Guaranteed; (c) any of the
security given for the payment of the Indebtedness Guaranteed; (d) notice of
acceptance of this Guaranty by the Lessor; (e) notice of presentment, demand for
payment, notice of non-performance, protest, notices of protest and notices of
dishonor, notice of non-payment or partial payment; (f) notice of any defaults
under the Lease or in the performance of any of the covenants and agreements
contained therein or in any instrument given as security therefor; (g) any
defense, offset or claim the Lessee or the undersigned may have against the
Lessor; (h) any limitation or exculpation of liability on the part of the Lessee
whether contained in the Lease or otherwise; (i) the transfer or sale by the
Lessee or the diminution in value thereof of any security given for the
Indebtedness Guaranteed; (j) any failure, neglect or omission on the part of the
Lessor to realize or protect the Indebtedness Guaranteed or any security given
therefor; (k) any right to insist that the Lessor prosecute collection of the
Indebtedness Guaranteed or resort to any instrument or security given to secure
the Indebtedness Guaranteed or to proceed against the Lessee or against any
other guarantor or surety prior to enforcing this Guaranty; provided, however,
at its sole discretion the Lessor may either in a separate action or an action
pursuant to this Guaranty pursue its remedies against the Lessee or any other
guarantor or surety, without affecting its rights under this Guaranty; (l)
notice to the undersigned of the existence of or the extending to the Lessee of
the Indebtedness Guaranteed, or (m) any order, method or manner of application
of any payments on the Indebtedness Guaranteed.
Without limiting the generality of the foregoing, the undersigned will not
assert against the Lessor any defense of waiver, release, discharge in
bankruptcy, statute of limitations, res judicata, statute of frauds,
anti-deficiency statute, ultra ▇▇▇▇▇ acts, usury, illegality or unenforceability
which may be available to the Lessee in respect of the Indebtedness Guaranteed,
or any setoff available against the Lessor to the Lessee whether or not on
account of a related transaction, and the undersigned expressly agrees that it
shall be and remain liable for any deficiency remaining after repossession and
sale of any of the leased equipment under the Lease, notwithstanding provisions
of law that may prevent the Lessor from enforcing such deficiency against the
Lessee. The undersigned hereby specifically waives and renounces any right to
proceed against the Lessee, and its successors and assigns, for any deficiency
arising as a result of the foreclosure of any mortgage or security interest
securing the Indebtedness Guaranteed, which deficiency Lessor may be unable to
enforce against the Lessee pursuant to applicable law. The
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liability of the undersigned shall not be affected or impaired by any voluntary
or involuntary dissolution, sale or other disposition of all or substantially
all of the assets, marshalling 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 the Lessee or any of its assets and that upon the
institution of any of the above actions, at the Lessor's sole discretion and
without notice thereof or demand therefor, the undersigned's obligations shall
become due and payable and enforceable against the undersigned, whether or not
the Indebtedness Guaranteed is then due and payable.
The undersigned further agrees that no act or thing, except for payment and
performance in full of the Indebtedness Guaranteed, which but for this provision
might or could in law or in equity act as a release of the liabilities of the
undersigned hereunder shall in any way affect or impair this Guaranty and the
undersigned agrees that this shall be a continuing, absolute and unconditional
Guaranty and shall be in full force and effect until the Indebtedness Guaranteed
has been paid in full.
Performance by the undersigned under this Guaranty shall not entitle the
undersigned to be subrogated to any of the Indebtedness Guaranteed or to any
security therefor, unless and until the full amount of the Indebtedness
Guaranteed has been fully paid.
The undersigned agrees this Guaranty is executed in order to induce the
Lessor to enter into the Lease and with the intent that it shall be relied upon
by the Lessor in connection therewith. Execution of the Lease, without any
further action or notice, shall constitute conclusive evidence of the reliance
hereon by the Lessor. This Guaranty shall run with the Lease and without the
need for any further assignment of this Guaranty to any subsequent holder of the
Lease or the need for any notice to the undersigned thereof. Upon endorsement or
assignment of the Lease to any subsequent holder, said subsequent holder of the
Lease may enforce this Guaranty as if said holder had been originally named as
Lessor hereunder.
The undersigned consents to be sued in any jurisdiction in which either the
Lessee may be sued or the Lessor's principal place of business, at Lessor's sole
option, as well as the undersigned's principal place of business and residence
and in the state where this Guaranty is executed.
No right or remedy herein conferred upon or reserved to the Lessor is
intended to be exclusive of any other available remedy or remedies but each and
every remedy shall be cumulative and shall be in addition to every other remedy
given under this Guaranty or now or hereafter existing at law or in equity. No
waiver, amendment, release or modification of this Guaranty shall be established
by conduct, custom or course of dealing, but only by an instrument in writing
duly executed by the Lessor.
This Guaranty is delivered in, made in, and shall in all respects be
construed pursuant to the laws of the State of Nevada.
This Guaranty and each and every part hereof, shall be binding upon the
undersigned and upon its successors and assigns and shall inure to the pro rata
benefit of each and every future holder of the Lease, including the successors
and assigns of the Lessor.
Dated: January 6, 2005.
International Thoroughbred Breeders, Inc.
By:s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,President
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Its:
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