Exhibit 10.3
CONTINUING GUARANTY
(Unlimited)
1. Guarantee.
For value received, and to induce U.S. BANK N.A. (the “
Bank ”) to extend or continue credit or other
- financial accommodations now or in the future to
American Wagering, Inc. (the “Borrower”), the
undersigned (the “ Guarantor ”) hereby
absolutely and unconditionally jointly and severally guarantees
prompt payment of and promises to pay or cause to be paid to the
Bank the Obligations (as hereinafter defined), whether or not the
Obligations are valid and enforceable against the Borrower,
whenever the Obligations become due, whether on demand, at maturity
or by reason of acceleration, or at the time the Borrower or the
Guarantor shall become the subject of any bankruptcy or insolvency
proceeding.
As used herein, the term “
Obligations ” shall mean all loans, drafts,
overdrafts, checks, notes and all other debts, liabilities and
obligations of every kind owing by the Borrower to the Bank,
whether direct or indirect, absolute or contingent, liquidated or
unliquidated whether of the same or a different nature and whether
existing now or in the future, including interest thereon and all
costs, expenses and reasonable attorneys’ fees (including
fees of inside counsel) paid or incurred by the Bank at any time
before or after judgment in attempting to collect any of the
foregoing, to realize on any collateral securing any of the
foregoing or this Guaranty, and to enforce this Guaranty. The
definition of “Obligations” also includes the amount of
any payments made to the Bank or another on behalf of the Borrower
(including payments resulting from liquidation of collateral) which
are recovered from the Bank by a trustee, receiver, creditor or
other party pursuant to applicable Federal or state law (the
“ Surrendered Payments ”). In the event that the
Bank makes any Surrendered Payments (including pursuant to a
negotiated settlement), the Surrendered Payments shall immediately
be reinstated as Obligations, regardless of whether the Bank has
surrendered or cancelled this Guaranty prior to returning the
Surrendered Payments.
2.
Consent to Bank Actions; No Discharge. The Guarantor agrees that the Bank does not have
to take any steps whatsoever to realize upon any collateral
securing the Obligations, or to proceed against the Borrower or any
other guarantor or surety for the Obligations either before or
after proceeding against the Guarantor; and the Guarantor waives
any claim of marshalling of assets against the Bank or any
collateral. The Guarantor also agrees that the Bank may do or
refrain from doing any of the following without notice to, or the
consent of, the Guarantor, without reducing or discharging the
Guarantor’s liability under this Guaranty: (i) renew,
amend, modify, extend or release any existing or future Obligations
(including making additional advances, or changing the interest
rate or amount, time or manner of payment of any Obligations), and
make additional extensions of credit to the Borrower (which will
become additional Obligations), regardless of when such
modifications or additional extensions of credit are made, and
regardless of whether they are similar to or different from any
other Obligations; (ii) amend, supplement and waive compliance with
any of the provisions of documents evidencing or related to any of
the Obligations; (iii) settle, modify, release, compromise or
subordinate any Obligation, any collateral securing any Obligation
or this Guaranty, or the liability of any other party responsible
for payment of any Obligation; and (iv) accept partial
payments, and apply any payments and all other amounts received
from the Borrower, from liquidation of any collateral or from any
other guarantor to the Obligations (or any other amounts due to the
Bank) In any manner that the Bank elects. The Guarantor also
expressly agrees that the Guarantor’s liability will not be
reduced or discharged by the Bank’s failure or delay in
perfecting (or to continue perfection of) any security interest,
mortgage or other lien on any collateral securing the Obligations
or this Guaranty, or to protect the value or condition of any such
collateral. THE GUARANTOR SPECIFICALLY ACKNOWLEDGES THAT THIS
GUARANTY COVERS ALL EXISTING AND FUTURE OBLIGATIONS OF THE BORROWER
TO THE BANK REGARDLESS OF THE AMOUNT OF THOSE OBLIGATIONS; THAT THE
BANK CAN MAKE ADDITIONAL EXTENSIONS OF CREDIT TO THE BORROWER
WITHOUT NOTIFYING THE GUARANTOR; AND THAT THE BANK CAN DEMAND
PAYMENT FROM AND IMPOSE LIABILITY ON THE GUARANTOR WITHOUT FIRST
TRYING TO COLLECT FROM THE BORROWER OR ANY OTHER
GUARANTOR.
3. Waivers.
The Guarantor expressly waives all rights of setoff and
counterclaims, as well as diligence in collection or prosecution,
presentment, demand of payment or performance, protest, notice of
dishonor, nonpayment or nonperformance of any Obligation. The
Guarantor also expressly waives notice of acceptance of this
Guaranty, and the right to receive all other notices and demands of
any kind relating to the Obligations or this Guaranty. The
Guarantor agrees that any right of subrogation as to payment or
enforcement of any security interest securing the Obligations shall
not be enforceable by any Guarantor until the Bank is paid in full.
In addition to, and not in substitution or lieu of, all of the
other waivers and releases contained herein from the Guarantor,
Guarantor hereby specifically, unconditionally and jointly and
severally waives any and all defenses predicated upon:
(i) change of ownership of any collateral covered by any
mortgage, deed of trust or security agreement or other security
instrument securing the Obligations; (ii) acquiring additional
collateral; (iii) substitution of different collateral in exchange
or exchanges for part or parts of any original collateral;
(iv) sale or other disposition, either in whole or in part, of
any collateral for the Obligations, without notice to the Guarantor
unless otherwise required by applicable law; (v) the fact that
there may be persons other than the Guarantor solvent and
responsible for the payment of the Obligations; (vi) release,
death, dissolution, liquidation or termination of the existence of
the Borrower or any other guarantor; (vii) an election of
remedies; or (viii) any other defenses based on suretyship or
impairment of collateral.
4. Financial
information. The Guarantor warrants that all financial
information previously provided to the Bank was accurate when
given, and that no material adverse change has occurred in the
Guarantor’s financial statue since such information was given
to the Bank. The Guarantor agrees to provide to the Bank from time
to time upon request any information regarding the
Guarantor’s financial condition which the Bank reasonably
requests; and without request, the Guarantor will provide annual
financial statements in form and content satisfactory to the Bank
within 60 days of the end of each year.
5.
Borrower’s Financial Condition. The Guarantor warrants
and represents to the Bank that (i) the Guarantor is
sufficiently knowledgeable and experienced in financial and
business matters to evaluate and understand the risks assumed in
connection wi
