Exhibit 10.25
GUARANTY AGREEMENT
This Guaranty Agreement (this "Guaranty"), made by INTERNATIONAL
THOROUGHBRED BREEDERS, INC., a Delaware corporation ("Guarantor"), whose address
for purposes hereof is 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, in
favor of PALM BEACH EMPRESS, INC., a Delaware corporation ("PBE"), and PALM
BEACH MARITIME CORPORATION, a Delaware corporation ("PBM"), both whose address
for purposes hereof is Xxx Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxx
00000.
RECITALS
A. Cruise Holdings I, LLC, the owner of the cruise ship Palm Beach Empress
and wholly-owned subsidiary of PBE ("Cruise I"), has entered into a Bareboat
Charter for the Palm Beach Princess (the "PBP Charter") with ITG Vegas, Inc.
("ITGV"), an indirect wholly-owned subsidiary of International Thoroughbred
Breeders, Inc. ("ITB"). Cruise Holdings II, LLC, the owner of the cruise ship
Big Easy and wholly-owned subsidiary of PBM (Cruise II"), has entered into a
Bareboat Charter for Big Easy (the "Big Easy Charter," and together with the PBP
Charter, the "Charters") with ITG Palm Beach, LLC ("ITGPB"), an indirect
wholly-owned subsidiary of ITB.
B. In consideration of and as a condition and inducement to PBE and PBM to
enter into the Charters, PBE and PBM have required that Guarantor execute and
deliver this Guaranty.
NOW, THEREFORE, incorporating the above Recitals by reference, and in
consideration of, and as an inducement for, the execution and delivery of the
Charters by PBE and PBM, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and agreed, Guarantor
hereby agrees as follows:
1. Obligations Guaranteed.
1.1 Obligations. Guarantor hereby absolutely and unconditionally
guarantees, without deduction by reason of setoff, defenses or counterclaim, to
PBE and PBM, respectively, and their respective legal representatives,
successors and assigns, and independently assumes liability to PBE and PBM,
respectively, and their representatives, successors and, without any requirement
whatsoever of resort by PBE or PBM to any other party for the payment of all
Charter payments, other charges or fees and any and all other payments, costs or
expenses (including but not limited to indemnifications, interest charges and
attorneys' fees), however designated, required to be paid by ITGV or ITGPB under
their respective Charters so long as any such amounts referred to in this clause
remain outstanding under the Charters (collectively, the payment and performance
obligations set forth above are hereafter called the "Obligations").
1.2 Default. Upon any default or breach by ITGV or ITGPB of any of
their respective duties or obligations under the Charters, PBE or PBM, as the
case may be, may, but need not, at its sole option, proceed directly against
Guarantor, without proceeding against the defaulting ITGV or ITGPB, as the case
may be, or any other person or entity (as used herein, the phrase "any other
person or entity" includes without limitation any other guarantor of the
Obligations) and without foreclosing upon, selling or otherwise disposing of or
collecting or applying any collateral or other property, real or personal, which
ITGV or ITGPB may have theretofore delivered to PBE or PBM, as the case may be,
as security for the payment and
performance of the Obligations. Guarantor hereby waives the right to require PBE
or PBM to proceed against ITGV or ITGPB or any other person or entity, or to
pursue any other remedy, and Guarantor further waives the right to have any
other property of ITGV or ITGPB or any other person or entity first applied to
the discharge of any of the Obligations.
2. Nature of Guarantor's Liability; No Exoneration or Subrogation Until All
Obligations Fully Satisfied.
2.1 Guaranty Unconditional. The guaranty by Guarantor provided for in
this Guaranty is an absolute and unconditional guaranty of payment and
performance, and is not a guaranty of collection, regardless of (i) the absence
of any action to enforce the same by the Charterers, or (ii) PBE or PBM
obtaining any judgment against ITGV or ITGPB, as the case may be, or taking any
action to enforce same. The liability of Guarantor under this Guaranty is
independent of the obligations which are hereby guaranteed and of the
liabilities of any other guarantors of the Obligations.
2.2 Waiver of Formalities. Guarantor hereby fully waives all
requirements, if any, of notice, demand for payment, diligence, filing of claims
with a court in the event of the bankruptcy of ITGV or ITGPB, and all other
notices of every kind or nature (including those of any action or inaction on
the part of the Charterers or anyone else) in respect of the Obligations.
2.3 Guarantor's Consent. Guarantor hereby consents to, and the
liability of Guarantor under this Guaranty shall in no way be affected by, the
following:
(a) any and all future changes, modifications, amendments,
alterations, renewals, extensions or assignments to or of the Charters,
including without limitation, any increases, reductions or cancellations which
may hereafter be made to, of or under the Loan Documents or of any of the
Obligations (collectively, the "Modifications");
(b) any and all alterations, impairments, suspensions, terminations
and expirations (including, without limitation, all such as might result from
the Modifications or from any action or inaction of the type described in
paragraph (c) below) of the remedies or rights of PBE or PBM against ITGV or
ITGPB, respectively, or any other person in respect of any of the Obligations;
and
(c) any and all action or inaction on the part of PBE or PBM
(including, without limitation, election of remedies, amendment, substitution,
surrender, release, forfeiture, enforcement, foreclosure and sale, under power
of sale or otherwise), in its sole and unfettered discretion, in respect of any
security (or any part thereof) now held or hereafter acquired by PBE or PBM
securing the performance of the Obligations.
The foregoing consent by Guarantor is knowingly given even though any
rights or defenses which Guarantor may otherwise have, by subrogation,
reimbursement, indemnification or otherwise, against ITGV or ITGPB or others may
be diminished, destroyed or otherwise adversely affected by any such alteration,
action or inaction, all to the end that Guarantor shall not be exonerated,
released or discharged from its absolute, unconditional and independent
liability hereunder by any such alteration, Modification, impairment,
suspension, termination, expiration, action or inaction.
2
2.4 Further Waivers. Guarantor waives any right pursuant to any law,
rule, arrangement or relationship now or hereafter existing, to require or
compel PBE or PBM to (a) proceed against ITGV or ITGPB, as the case may be, or
any other guarantor; (b) proceed against or exhaust any security for the
Obligations; (c) pursue any other remedy in PBE's or PBM's power whatsoever; and
failure of PBE or PBM to do any of the foregoing shall not exonerate, release or
discharge Guarantor from its absolute, unconditional and independent liability
to PBE or PBM hereunder, or (d) in the event that any property of Guarantor is
or may be hypothecated with property of ITGV or ITGPB as security for any of the
Obligations, to have such property of ITGV or ITGPB first applied to the
discharge of such Obligations.
2.5 Separate Action. PBE or PBM may bring and prosecute a separate
action against Guarantor to enforce Guarantor's liability hereunder, whether or
not any action is brought against ITGV or ITGPB or any other person or entity
and whether or not ITGV or ITGPB or any other person or entity is joined in such
action or actions. Nothing shall prohibit PBE or PBM from exercising their
rights against Guarantor, ITGV or ITGPB, the security, if any, for the
Obligations, and any other person or entity simultaneously, jointly and/or
severally. Guarantor shall be bound by each and every ruling, order and judgment
obtained by PBE or PBM against ITGV or ITGPB in respect of the Obligations,
whether or not Guarantor is a party to the action or proceeding in which such
ruling, order or judgment is issued or rendered.
2.6 No Exoneration. Guarantor shall not be discharged, released or
exonerated, in any way, from its absolute, unconditional and independent
liability hereunder, even though any rights or defenses which Guarantor may have
against ITGV or ITGPB, PBE or PBM or others may be destroyed, diminished or
otherwise affected by any of the following:
(a) Any declaration by PBE or PBM of a default in respect of any of
the Obligations.
(b) The exercise by PBE or PBM of any rights or remedies against
ITGV or ITGPB or any other person or entity.
(c) The failure of PBE or PBM to exercise any rights or remedies
against ITGV or ITGPB or any other person or entity.
(d) The sale or enforcement of, or realization upon (through
judicial foreclosure, seizure, power of sale or any other means) any security
for any of the Obligations, even though (i) recourse may not thereafter be had
against ITGV or ITGPB for any deficiency or (ii) PBE or PBM fails to pursue any
such recourse which might otherwise be available, whether by way of deficiency
judgment following judicial foreclosure or otherwise.
2.7 No Subrogation. Until all the Obligations have been performed in
full, Guarantor shall have no right to subrogation, and Guarantor waives (a) any
right pursuant to any law, rule, arrangement or relationship now or hereafter
existing, or otherwise, to enforce any remedy which PBE or PBM now has or may
hereafter have against ITGV or ITGPB and (b) any benefit of, and any right to
participate in, any security now or hereafter held by PBE or PBM.
3
2.8 No Discharge. Guarantor shall not be discharged, released or
exonerated, in any way, from its absolute, unconditional and independent
liability hereunder by the voluntary or involuntary participation by ITGV or
ITGPB in any settlement or composition for the benefit of ITGV's or ITGPB's
creditors, either in liquidation, readjustment, receivership, bankruptcy or
otherwise.
2.9 Bankruptcy. Guarantor understands and acknowledges that by virtue
of this Guaranty, it has specifically assumed any and all risks of a bankruptcy
or reorganization case or proceeding with respect to ITGV or ITGPB. As an
example and not by way of limitation, a subsequent modification of the Charters
in any reorganization case concerning ITGV or ITGPB shall not affect the
obligation of Guarantor to discharge the Obligations in accordance with the
original terms of the offered Charter.
2.10 No Marshalling; Reinstatement. Guarantor consents and agrees that
neither PBE or PBM nor any person or entity acting for or on behalf of PBE or
PBM shall be under any obligation to xxxxxxxx any assets in favor of Guarantor
or against or in payment of any or all of the Obligations. Guarantor further
agrees that, to the extent that ITGV or ITGPB or any other guarantor of all or
any part of the Obligations makes a payment or payments to PBE or PBM, or PBE or
PBM receives any proceeds of any security granted in respect of the Obligations,
which payment or payments or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to any person or entity, Guarantor, such other guarantor or any other
person or entity, or their respective estates, trustees, receivers or any other
party, including, without limitation, the Guarantor, under any bankruptcy law,
state or federal law, common law or equitable cause, then, to the extent of such
payment or repayment, the part of the Obligations that had been paid, reduced or
satisfied by such amount shall be reinstated and continued in full force and
effect as of the time immediately preceding such initial payment, reduction or
satisfaction.
3. Subordination of Guarantor's Claims. Any indebtedness of ITGV or ITGPB
now or hereafter held by Guarantor is hereby subordinated to the Obligations;
and such indebtedness of ITGV or ITGPB to Guarantor, if any material default
occurs under any of the Obligations and PBE or PBM so requests from and after
the material default, shall be collected, enforced and received by Guarantor as
trustee for PBE or PBM and be paid over to PBE or PBM on account of the
Obligations but without reducing or affecting in any manner the absolute,
unconditional and independent liability of Guarantor under this Guaranty.
4. Costs of Enforcement. Guarantor shall reimburse PBE or PBM for all costs
and expenses, including, without limitation, all attorneys' fees whether or not
legal action be instituted, incurred or paid by PBE or PBM in enforcing this
Guaranty.
5. Benefit. This Guaranty may be assigned or transferred in whole or in
part by PBE or PBM. All references to PBE or PBM herein shall be deemed to
include any such successors or assignees or any subsequent holders of the Note
or any of them. This Guaranty is also made for the benefit of any person
claiming by, through or under PBE or PBM, including without limitation PDS
Gaming Corporation.
4
6. Notices. All notices or other communications required or permitted to be
given pursuant to this Assignment shall be in writing and shall be considered as
properly given if sent by overnight courier delivery, or by delivering the same
in person to the intended addressee. Notice given by overnight courier shall be
effective one business day after its deposit with the courier service. Notice
given in any other manner shall be effective only if and when received by the
addressee. Any notices delivered hereunder shall be addressed to the addresses
set forth above.
7. Successors. All of the terms and provisions of this Guaranty shall be
binding upon, and inure to the benefit of, and be enforceable by, the respective
heirs, representatives, successors and assigns of the parties hereto. Nothing
contained in this Guaranty shall be deemed to in any way alter or modify the
terms and conditions of the Charters.
8. Entire Agreement. This Guaranty embodies the entire agreement and
understanding between the parties hereto and supersedes all prior agreements and
understandings related to the subject matter hereof.
9. Headings. The headings in this Guaranty are for the purpose of reference
only and shall not limit or otherwise affect the terms or provisions hereof.
10. Changes, Waivers, Etc. Neither this Guaranty nor any term or provision
hereof may be changed, waived, discharged or terminated except by an instrument
in writing executed by the party against which enforcement of the change,
waiver, discharge or termination is sought.
11. Disclosure. Guarantor assumes full responsibility for being and
remaining informed of the financial condition of ITGV or ITGPB and all other
circumstances bearing upon the risk of nonpayment or nonperformance of any of
the Obligations, and PBE or PBM shall have no duty to advise Guarantor of
information known to either of them regarding such condition or any such
circumstances.
12. Governing Law. The substantive and procedural laws of the State of
Nevada without reference to its conflict of laws provisions shall govern the
validity, construction, interpretation, performance and enforcement of this
Guaranty and the parties agree to jurisdiction in Nevada regardless of the
location of the Vessels. The parties also hereby agree that any action and/or
proceeding in connection with this Guaranty shall only be brought in the venue
of Xxxxx County, Nevada.
[SIGNATURES ON FOLLOWING PAGE]
5
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed as of
the day and year first above written.
INTERNATIONAL THOROUGHBRED
BREEDERS, INC.
By:
--------------------------
Name:
Title:
6
