Exhibit 10.72 GUARANTYGuarantee Agreement |
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CORRAL COUNTRY COIN INC | MARKET GAMING, INC | BANK OF AMERICA, N.A.,. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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THIS GUARANTY (this "Guaranty"), dated as of June 10, 2004, is made by MARKET GAMING, INC., a Nevada corporation ("Guarantor") in favor of BANK OF AMERICA, N.A., as Administrative Agent ("Administrative Agent"), for the benefit of itself and each Lender (and their successors and assigns) party to the Credit Agreement referred to below with reference to the following facts: RECITALS A. Pursuant to the Credit Agreement, of even date herewith, by and among Herbst Gaming, Inc., a Nevada corporation ("Borrower"), the lenders from time to time party thereto (collectively, the "Lenders" and each individually, a "Lender"), and Administrative Agent (as amended, extended, renewed, supplemented, or otherwise modified from time to time, the "Credit Agreement"), the Lenders are making certain credit facilities available to Borrower. B. As a condition to the availability of such credit facilities, Guarantor is required to enter into this Guaranty and guaranty the Guarantied Obligations as hereinafter provided. C. This Guaranty is secured by inter alia by certain deeds of trust made by the Guarantor in favor of the Administrative Agent. AGREEMENT NOW, THEREFORE, in order to induce the Lenders to extend the aforementioned credit facilities to Borrower, and for other good and valuable consideration, the receipt and adequacy of which hereby are acknowledged, Guarantor hereby represents, warrants, covenants, agrees and guaranties as follows: 1. Definitions . This Guaranty is one of the Loan Documents. Terms defined in the Credit Agreement and not otherwise defined in this Guaranty shall have the meanings given those terms in the Credit Agreement when used herein and such definitions are incorporated herein as though set forth in full. In addition, as used herein, the following terms shall have the meanings respectively set forth after each: " Beneficiary " means the Administrative Agent (acting as the Administrative Agent and/or on behalf of the Lenders), and the Lenders, and each of them, and any one or more of them. Subject to the terms of the Credit Agreement, each right, remedy, privilege or power of Beneficiary shall be exercised by the Administrative Agent. " Guarantied Obligations " means all Obligations of Borrower at any time and from time to time under one or more of the Loan Documents, whether due or to become due, matured or unmatured, liquidated or unliquidated, or contingent or noncontingent, including obligations of performance as well as obligations of payment, and including interest that accrues after the commencement of any bankruptcy or insolvency proceeding by or against Borrower, any Guarantor or any other Person. 2. Guaranty of Guarantied Obligations . Guarantor hereby irrevocably and unconditionally guaranties and promises to pay and perform on demand the Guarantied Obligations and each and every one of them, including all amendments, modifications, supplements, renewals or extensions of any of them, whether such amendments, modifications, supplements, renewals or extensions are evidenced by new or additional instruments, documents or agreements or change the rate of interest on any Guarantied Obligation or the security therefor, or otherwise. 1 3. Nature of Guaranty . This Guaranty is continuing in nature and relates to any Guarantied Obligations now existing or hereafter arising. This Guaranty is a guaranty of prompt and punctual payment and performance and is not merely a guaranty of collection. 4. Relationship to Other Agreements . Nothing herein shall in any way modify or limit the effect of terms or conditions set forth in any other document, instrument or agreement executed by Guarantor or in connection with the Guarantied Obligations, but each and every term and condition hereof shall be in addition thereto. All provisions contained in the Credit Agreement or any other Loan Document that apply to Loan Documents generally are fully applicable to this Guaranty and are incorporated herein by this reference. 5. Subordination of Indebtedness of Borrower to Guarantor to the Guarantied Obligations . Guarantor agrees that: (a) Any indebtedness of Borrower now or hereafter owed to Guarantor hereby is subordinated to the Guarantied Obligations. (b) If Beneficiary so requests, any such indebtedness of Borrower now or hereafter owed to Guarantor shall be collected, enforced and received by Guarantor as trustee for Beneficiary and shall be paid over to Administrative Agent in kind on account of the Guarantied Obligations, but without reducing or affecting in any manner the obligations of Guarantor under the other provisions of this Guaranty. (c) Should Guarantor fail to collect or enforce any such indebtedness of Borrower now or hereafter owed to Guarantor and pay the proceeds thereof to Administrative Agent in accordance with Section 5(b) hereof, Administrative Agent as Guarantor's attorney-in-fact may do such acts and sign such documents in Guarantor's name as Beneficiary considers necessary or desirable to effect such collection, enforcement and/or payment. 6. Statutes of Limitations and Other Laws . Until the Guarantied Obligations shall have been paid and performed in full, all the rights, privileges, powers and remedies granted to Beneficiary hereunder shall continue to exist and may be exercised by Beneficiary at any time and from time to time irrespective of the fact that any of the Guarantied Obligations may have become barred by any statute of limitations. Guarantor expressly waives the benefit of any and all statutes of limitation, and any and all Laws providing for exemption of property from execution or for evaluation and appraisal upon foreclosure, to the maximum extent permitted by applicable Laws. 7. Waivers and Consents . Guarantor acknowledges that the obligations undertaken herein involve the guaranty of obligations of Persons other than Guarantor and, in full recognition of that fact, consents and agrees that Beneficiary may, at any time and from time to time, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof: (a) supplement, modify, amend, extend, renew, accelerate or otherwise change the time for payment or the terms of the Guarantied Obligations or any part thereof, including any increase or decrease of the rate(s) of interest thereon; (b) supplement, modify, amend or waive, or enter into or give any agreement, approval or consent with respect to, the Guarantied Obligations or any part thereof, or any of the Loan Documents to which Guarantor is not a party or any additional security or guaranties, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder; (c) accept new or additional instruments, documents or agreements in exchange for or relative to any of the Loan Documents or the Guarantied Obligations or any part thereof; (d) accept partial payments on the Guarantied Obligations; (e) receive and hold additional security or guaranties for the Guarantied Obligations or any part thereof; (f) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer and/or enforce any security or guaranties, and apply any security and direct the order or manner of sale thereof as Beneficiary in its sole and absolute discretion may determine; (g) release any Person from any personal liability with respect to the Guarantied Obligations or any 2 part thereof; (h) settle, release on terms satisfactory to Beneficiary or by operation of applicable Laws or otherwise liquidate or enforce any Guarantied Obligations and any security or guaranty therefor in any manner, consent to the transfer of any security and bid and purchase at any sale; and/or (i) consent to the merger, change or any other restructuring or termination of the corporate or other existence of Borrower or any other Person, and correspondingly restructure the Guarantied Obligations, and any such merger, change, restructuring or termination shall not affect the liability of Guarantor or the continuing effectiveness hereof, or the enforceability hereof with respect to all or any part of the Guarantied Obligations. Upon the occurrence and during the continuance of any Event of Default, Beneficiary may enforce this Guaranty independently as to Guarantor and independently of any other remedy or security Beneficiary at any time may have or hold in connection with the Guarantied Obligations. Guarantor expressly waives any right to require Beneficiary to marshal assets in favor of any Person, and agrees that Beneficiary may proceed against any Person, or upon or against any security or remedy, before proceeding to enforce this Guaranty, in such order as it shall determine in its sole and absolute discretion. Beneficiary may file a separate action or actions against the Borrower and/or Guarantor and/or any other Person without respect to whether action is brought or prosecuted with respect to any security or against any other Person, or whether any other Person is joined in any such action or actions. Guarantor agrees that Beneficiary and Borrower and any of their Affiliates may deal with each other in connection with the Guarantied Obligations or otherwise, or alter any contracts or agreements now or hereafter existing between any of them, in any manner whatsoever, all without in any way altering or affecting the security of this Guaranty. Beneficiary's rights hereunder shall be reinstated and revived, and the enforceability of this Guaranty shall continue, with res |
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