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EXHIBIT 10.57
AMENDMENT TO AND CONFIRMATION OF GUARANTY
THIS AMENDMENT TO AND CONFIRMATION OF GUARANTY (this
"Amendment") is made as of this 22nd day of April, 1999, by XXXX X. XXXXXXX, an
individual (the "Guarantor"), in favor of FOOTHILL CAPITAL CORPORATION, a
California corporation ("Foothill"), with reference to the following:
A. Foothill and Leisure Time Cruise Corporation, a Colorado corporation
(ABorrower@), entered into that certain Security Agreement dated as of October
9, 1998 (ASecurity Agreement@), in connection with which Foothill agreed to
provide certain financial accommodations to Borrower. To induce Foothill to
provide such financial accommodations, Guarantor executed a Continuing Guaranty
in favor of Foothill, dated as of October 9, 1998 (the AGuaranty@).
B. Borrower has requested that Foothill further modify and amend the
terms of the Security Agreement pursuant to the terms and conditions set forth
in that certain Amendment No. 1 to Loan Documents, of even date herewith
("Amendment No. One"), and certain other documents and instruments executed in
connection with Amendment No. One (as described in Amendment No. One).
C. To induce Foothill to enter into Amendment No. One and to provide
(i) the Leisure Express Term Loan (referred to in Amendment No. One) to Leisure
Express Cruise, L.L.C., a Colorado limited liability company (ALeisure
Express@), and (ii) the Florida Casino Term Loan (referred to in Amendment No.
One) to Florida Casino Cruises, Inc., a Georgia corporation (AFlorida Casino@),
and as a condition precedent to the effectiveness of Amendment No. One,
Guarantor has agreed to execute and deliver this Amendment to Foothill.
NOW, THEREFORE, in consideration of the foregoing recitals
(all of which are agreed to and incorporated herein) and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor hereby agrees as follows:
1. Amendments to Guaranty. The Guaranty is hereby amended as
follows:
1.1 References to Borrower. All references to ABorrower@ in
the Guaranty shall mean ABorrower, Florida Casino, and/or Leisure Express@.
1.2 Definition of "Guaranteed Obligations". The definition of
"Guaranteed Obligations" set forth in Section 1 of the Guaranty shall be deemed
to include (a) all obligations of Leisure Express in connection with the Leisure
Express Term Loan (including, but not limited to, the Leisure Express
Obligations referred to in Amendment No. One), and (b) all obligations of
Florida Casino in connection with the Florida Casino Term Loan
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(including, but not limited to, the Florida Casino Obligations referred to in
Amendment No. One).
1.3 Definition of "Loan Documents". The definition of "Loan
Documents" set forth in Section 1 of the Guaranty is hereby amended to read in
its entirety as follows:
""Loan Documents" shall mean that certain Security Agreement,
of even date herewith, between Foothill and Borrower, that
certain Secured Promissory Note in the principal amount of
THREE MILLION DOLLARS ($3,000,000) issued by Borrower in
connection therewith, that certain Security Agreement, dated
April 22, 1999, between Foothill and Leisure Express Cruise,
L.L.C., that certain Secured Promissory Note, dated April 22,
1999, in the principal amount of TWO MILLION ONE HUNDRED
THOUSAND DOLLARS ($2,100,000) issued by Leisure Express
Cruise, L.L.C. in favor of Foothill, that certain Security
Agreement, dated April 22, 1999, between Foothill and Florida
Casino Cruises, Inc., that certain Secured Promissory Note,
dated April 22, 1999, in the principal amount of THREE MILLION
TWO HUNDRED TWENTY FIVE THOUSAND DOLLARS ($3,225,000) issued
by Florida Casino Cruises, Inc. in favor of Foothill, and
those documents, instruments, and agreements which either now
or in the future exist among Borrower, Guarantor, or any
affiliate of Borrower, Florida Casino Cruises, Inc., and/or
Leisure Express Cruise, L.L.C., on the one hand, and Foothill,
on the other hand, and any amendments, modifications, or
supplements to any of the foregoing."
2. Full Force and Effect; Ratification and Reaffirmation of
Guaranty. All provisions of the Guaranty not otherwise specifically amended by
this Amendment shall remain in full force and effect and are hereby ratified and
reaffirmed by Guarantor. Guarantor has no defenses or rights of offset with
respect to its obligations under the Guaranty.
3. Equipment Security Agreement. The Equipment Security
Agreement, dated October 9, 1998, executed by Guarantor in favor of Foothill
shall remain in full force and effect. The security interest granted by
Guarantor in favor of Foothill pursuant to such Equipment Security Agreement is
hereby deemed to secure the Guaranty Obligations as amended by this Amendment.
4. Review and Approval of Loan Documents. Guarantor has been
provided with copies of each of the Loan Documents (including, but not limited
to, Amendment No. One and the other documents and instruments described in
Amendment No. One), and Guarantor acknowledges and confirms that (i) it has
reviewed and approved the terms of the Loan Documents, as amended, and (ii) the
Guaranty, as amended by this Amendment, shall remain in full force and effect
with respect to the Loan Documents, as amended.
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5. Miscellaneous Provisions.
5.1 Binding Effect. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
5.2 Severability. Any provision in this Amendment that is
inoperative, unenforceable, or invalid in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such inoperation,
unenforceability, or invalidity without affecting the remaining provisions
hereof or affecting the operation, enforceability, or validity of such provision
in any other jurisdiction.
5.3 Interpretation. Guarantor acknowledges and agrees that it
has had the opportunity to consult with counsel and review and revise this
Amendment and that any rule of construction to the effect that ambiguities are
to be resolved against the drafting party shall not apply in the interpretation
of this Amendment or any amendment hereto.
5.4 Entire Agreement; Amendment. The Guaranty as modified by
this Amendment reflects the entire agreements between the parties as to the
subject matter of the Guaranty and no alteration or amendment thereof shall be
effective unless in writing and signed by the parties sought to be charged or
bound thereby.
5.5 Choice of Law and Venue. THE VALIDITY OF THIS AMENDMENT,
ITS CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT, AND THE RIGHTS OF GUARANTOR
AND FOOTHILL, SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
GUARANTOR HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION
WITH THIS AMENDMENT SHALL BE TRIED AND DETERMINED ONLY IN THE STATE AND FEDERAL
COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, OR, AT THE
SOLE OPTION OF FOOTHILL, IN ANY OTHER COURT IN WHICH FOOTHILL SHALL INITIATE
LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER
THE MATTER IN CONTROVERSY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GUARANTOR
HEREBY EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO ASSERT THE DOCTRINE OF FORUM
NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN
ACCORDANCE WITH THIS SECTION.
5.6 Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY
LAW, GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY ACTION,
CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO
THIS AMENDMENT, OR IN ANY WAY
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CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE DEALINGS OF GUARANTOR AND
FOOTHILL WITH RESPECT TO THIS AMENDMENT, OR THE TRANSACTIONS RELATED HERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GUARANTOR
HEREBY AGREES THAT ANY SUCH ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR
PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT FOOTHILL
MAY FILE AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY COURT OR OTHER
TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF GUARANTOR TO THE WAIVER OF ITS
RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, this Amendment to and Confirmation of
Guaranty is executed as of the date first above mentioned.
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, individually
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