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EXHIBIT 4(ii)(a)(9)
EXECUTION COPY
PARENT GUARANTY
This PARENT GUARANTY (this "Guaranty") is made as of
September 14, 2000, by American Classic Voyages Co., a Delaware corporation (the
"Guarantor"), in favor of The Chase Manhattan Bank, a New York banking
corporation, as agent (hereinafter in such capacity, the "Agent") for its
benefit and the benefit of the other "Holders of Secured Obligations" (as
defined in that certain Credit Agreement referred to below). Unless otherwise
defined herein, capitalized terms used herein shall have the meanings ascribed
to them in the Credit Agreement.
WHEREAS, The Delta Queen Steamboat Co., a Delaware
corporation (the "Borrower"), the financial institutions listed on the signature
pages thereof and each other financial institution which from time to time
becomes a party thereto in accordance with Section 11.02(a) thereof (together
with their respective successors and permitted assigns, individually, a "Lender"
and, collectively, the "Lenders") and the Agent are parties to that certain
Amended and Restated Credit Agreement dated as of September 14, 2000 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement") providing, subject to the terms and conditions thereof, for
extensions of credit to be made by the Lenders to the Borrower;
WHEREAS, the Guarantor directly or indirectly owns 100% of
the outstanding capital stock of the Borrower and will derive both direct and
indirect benefits from the loans made to the Borrower pursuant to the Credit
Agreement;
WHEREAS, as a condition to the Lenders' and the Agent's
willingness to enter into the Credit Agreement and the Lenders' willingness to
extend credit to Borrower under the Credit Agreement, the Lenders have required
that the Guarantor enter into this Guaranty;
NOW, THEREFORE, in consideration of the premises set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor agrees as follows:
1. Guaranty.
(a) For value received and in consideration of any loan,
advance or financial accommodation of any kind whatsoever heretofore, now or
hereafter made, given or granted to the Borrower by the Lenders, the Guarantor
unconditionally and irrevocably guarantees for the benefit of the Agent and the
other Holders of the Secured Obligations the full and prompt payment when due
(whether at maturity or earlier, by reason of acceleration or otherwise, and at
all times thereafter), and the performance of (i) all of the Obligations of
Borrower under the Credit Agreement (including, without limitation, interest
accruing following the filing of a bankruptcy petition by or against Borrower,
at the applicable rate specified in the Credit Agreement, whether or not such
interest is allowed as a claim in bankruptcy) and (ii) all other Obligations of
Borrower to the Agent or any other Holder of Secured Obligations under the Loan
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Documents (the Obligations of Borrower which are described in clauses (i)
through (ii) of this Section 1(a) are hereinafter referred to collectively as
the "Obligations").
(b) At any time after the occurrence and during the
continuance of an Event of Default, the Guarantor shall pay to the Agent, for
the benefit of the Agent and the other Holders of Secured Obligations, on demand
by the Agent and in immediately available funds, the full amount of the
Obligations then due and payable. The Guarantor unconditionally further agrees
to pay to the Agent, for the benefit of the Agent and the other Holders of
Secured Obligations, as applicable, and reimburse the Agent for the benefit of
the Agent and the other Holders of Secured Obligations, as applicable, for, on
demand and in immediately available funds, (a) all losses, reasonable fees,
reasonable costs and expenses of the type and to the extent permitted under
Section 11.03 of the Credit Agreement (including, without limitation, all court
costs and reasonable attorneys' and paralegals' fees, costs and expenses) paid
or incurred by the Agent or any other Holder of Secured Obligations in: (1)
endeavoring to collect all or any part of the Obligations from, or in
prosecuting any action against, Borrower, the Guarantor or any of the Borrower
Subsidiaries relating to the Credit Agreement, this Guaranty, the Subsidiary
Guaranties, the other Loan Documents or the transactions contemplated thereby;
(2) taking any action with respect to any security or collateral securing the
Obligations or obligations of the Guarantor hereunder or of any Borrower
Subsidiary under the Subsidiary Guaranties (collectively, the "Subsidiary
Guarantors"); and (3) preserving, protecting or defending the enforceability of,
or enforcing, this Guaranty or their respective rights hereunder (all such costs
and expenses described in clauses (1) through (3) of this Section 1(b)(a) are
hereinafter referred to as the "Expenses") and (b) interest on the Expenses,
from the date of demand under this Guaranty until paid in full at the Default
Rate described in Section 2.03(d) of the Credit Agreement (the "Interest Rate")
(all such Obligations and other indebtedness, liabilities and obligations set
forth in this Section 1 being hereinafter collectively referred to as the
"Guaranteed Obligations"). The Guarantor hereby agrees that this Guaranty is an
absolute guaranty of payment and is not a guaranty of collection.
2. Obligations Unconditional. The Guarantor hereby agrees
that its obligations under this Guaranty shall be unconditional, irrespective
of:
(i) The validity, enforceability, avoidance, assignment or
subordination of any of the Guaranteed Obligations or any of the Loan
Documents;
(ii) the absence of any attempt by, or on behalf of, the
Agent or any other Holder of Secured Obligations to collect, or to take any
other action to enforce, all or any part of the Guaranteed Obligations
whether from or against Borrower, any of the Subsidiary Guarantors or any
other Person;
(iii) the election of any remedy by, or on behalf of, the
Agent or any other Holder of Secured Obligations with respect to all or any
part of the Guaranteed Obligations;
(iv) any change in the time, manner or place of payment of,
or in any other term of, or any increase in the amount of, all or any of
the Obligations, or the waiver, consent, extension, forbearance or granting
of any indulgence, by, or on behalf of, the
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Agent or any other Holder of Secured Obligations with respect to any
provision of any of the Loan Documents;
(v) the failure of the Agent or any other Holder of Secured
Obligations to take any steps to perfect and maintain its security interest
in, or to preserve its rights to, any security or collateral for any or any
part of the Guaranteed Obligations;
(vi) the election by, or on behalf of, the Agent or any one
or more of the other Holders of Secured Obligations, in any proceeding
instituted under Chapter 11 of Title 11 of the United States Code (11
U.S.C. 101 et seq.) (the "Bankruptcy Code"), of the application of Section
1111(b)(2) of the Bankruptcy Code;
(vii) any borrowing or grant of a security interest by
Borrower as debtor-in-possession under Section 364 of the Bankruptcy Code;
(viii) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any portion of the claims of any of the Agent or any other
Holder of Secured Obligations for repayment of all or any part of the
Guaranteed Obligations;
(ix) any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of Borrower, the Guarantor or any
of the Subsidiary Guarantors; or
(x) any change, restructuring or termination of or to the
corporate structure or existence of the Guarantor, Borrower or any
Subsidiary Guarantor or any restructuring or refinancing of all or any
portion of the Guaranteed Obligations.
3. Enforcement; Application of Payments. Upon the occurrence
and during the continuance of an Event of Default, the Agent may proceed
directly and at once, without notice, against the Guarantor to obtain
performance of and to collect and recover the full amount, or any portion, of
the Guaranteed Obligations, without first proceeding against Borrower or any of
the Subsidiary Guarantors, or any other Person, or against any security or
collateral for the Guaranteed Obligations. Subject only to the terms and
provisions of the Credit Agreement, the Agent shall have the exclusive right to
determine the application of payments and credits, if any, from the Guarantor,
any of the Subsidiary Guarantors, Borrower or from any other Person on account
of the Guaranteed Obligations or any other liability of any of the Guarantor to
the Agent or any other Holder of Secured Obligations.
4. Waivers.
(a) The Guarantor hereby waives promptness, diligence,
presentment, demand of payment, filing of claims with a court in the event of
receivership or bankruptcy of Borrower, protest or notice with respect to any or
any part of the Guaranteed Obligations, all setoffs and counterclaims and all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor and notices of acceptance of this
Guaranty or any other guaranty, the benefits of all statutes of limitation, the
benefits of any statute the effect of which would require the Agent or any other
Holder of Secured Obligations to first proceed against Borrower, any Subsidiary
Guarantor or any other Person to enforce or collect all or any
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portion of the Guaranteed Obligations before proceeding against the Guarantor
for the enforcement of the Guarantor's obligations and indebtedness hereunder,
and all other demands whatsoever (and shall not require that the same be made on
Borrower or any Subsidiary Guarantor as a condition precedent to the obligations
of the Guarantor hereunder), and covenants that this Guaranty will not be
discharged, except by indefeasible payment and performance in full of all of the
Guaranteed Obligations and any other obligations contained herein. The Guarantor
further waives all notices of the existence, creation or incurring of new or
additional indebtedness, arising either from additional loans extended to
Borrower or otherwise, and also waives all notices that the principal amount, or
any portion thereof, and/or any interest on any instrument or document
evidencing all or any part of the Guaranteed Obligations is due, notices of any
and all proceedings to collect from the maker, any endorser or any other
guarantor of all or any part of the Guaranteed Obligations, or from any other
Person, and, to the extent permitted by law, notices of exchange, sale,
surrender or other handling of any security or collateral given to the Agent or
any other Holder of Secured Obligations to secure payment of all or any part of
the Guaranteed Obligations. The Guarantor further waives any requirement that
the Agent or any other Holder of Secured Obligations protect, secure, perfect or
insure any security interest or exhaust any right to take action against
Borrower or any other Person or any collateral.
(b) The Guarantor hereby waives, to the fullest extent
permitted by applicable law in accordance with Section 2856 of the California
Civil Code, all rights and benefits under California Civil Code Sections 2787 to
2855, inclusive (or any similar laws in other jurisdictions) and all rights and
benefits of California Civil Code Sections 2899 and 3433 (or any similar laws in
any other jurisdiction). In addition, without limiting the generality of the
foregoing or any other provision hereof, the Guarantor hereby waives, in
accordance with Section 2856 of the California Civil Code, all rights and
defenses (including, without limitation, all rights and defenses arising out of
an election of remedies by the Agent or any other Holder of Secured Obligations)
that the Guarantor may have because the Obligations are secured by real
property. This means, among other things:
(i) the Agent or any other Holder of Secured Obligations may
collect from the Guarantor without first foreclosing on any real or
personal property collateral pledged to or for the benefit of the Agent or
any other Holder of Secured Obligations; and
(ii) if the Agent or any other Holder of Secured Obligations
forecloses on any real property collateral pledged by the Borrower:
(A) the amount of the debt may be reduced only by the
price for which that collateral is sold at the foreclosure
sale, even if the collateral is worth more than the sale
price; and
(B) the Agent or any other Holder of Secured Obligations
may collect from the Guarantor even if the Agent or any other
Holder of Secured Obligations, by foreclosing on the real
property collateral, has destroyed any right the Guarantor
may have to collect from the Borrower.
This is an unconditional and irrevocable waiver of any rights and defenses the
Guarantor may have because the Guaranteed Obligations are or may be secured by
real property. These rights
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and defenses include, but are not limited to, any rights or defenses based upon
Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure (or
any similar laws in any other jurisdiction). In accordance with Section 15
below, this Guaranty shall be governed by, and shall be construed and enforced
in accordance with, the internal laws (as opposed to the conflicts of laws
provisions other than those contained in New York General Obligations Law
Section 5-1401) of the State of New York. This Section 4b(ii) and any other
referenced provisions of California law are included solely out of an abundance
of caution, and shall not be construed to mean that any of the referenced
provisions of California law are in any way applicable to this Guaranty or to
any of the Guaranteed Obligations.
(c) The Guarantor agrees that notwithstanding the foregoing
and without limiting the generality of the foregoing if, after the occurrence
and during the continuance of an Event of Default, any of the Agent or any other
Holder of Secured Obligations is prevented by applicable law from exercising its
rights to accelerate the maturity of the Obligations, to collect interest on the
Obligations, or to enforce or exercise any other right or remedy with respect to
the Obligations, or the Agent is prevented from taking any action to realize on
the Collateral, the Guarantor agrees to pay to the Agent for the account of the
Agent and the other Holders of Secured Obligations, upon demand therefor, the
amount which otherwise would have been due and payable had such rights and
remedies been permitted to be exercised by the Agent or such Holder.
(d) The Holders of Secured Obligations, either themselves or
acting through the Agent, are hereby authorized, without notice or demand and
without affecting the liability of the Guarantor hereunder, from time to time,
(i) to renew, extend, accelerate or otherwise change the time for payment of, or
other terms relating to, all or any part of the Guaranteed Obligations, or to
otherwise modify, amend or change the terms of any of the Loan Documents; (ii)
to accept partial payments on all or any part of the Guaranteed Obligations;
(iii) to take and hold security or collateral for the payment of all or any part
of the Guaranteed Obligations, this Guaranty, or any other guaranty of all or
any part of the Guaranteed Obligations or other liabilities of Borrower, the
Guarantor or any of the Subsidiary Guarantors, (iv) to exchange, enforce, waive
and release any such security or collateral; (v) to apply such security or
collateral and direct the order or manner of sale thereof as in their discretion
they may determine; (vi) to settle, release, exchange, enforce, waive,
compromise or collect or otherwise liquidate all or any part of the Guaranteed
Obligations, this Guaranty, any other guaranty of all or any part of the
Guaranteed Obligations, and any security or collateral for the Guaranteed
Obligations or for any such guaranty; or (vii) to the extent permitted under the
Credit Agreement, to assign all or any portion of their rights and interests in
the Guaranteed Obligations and/or any collateral or other security therefor to
any Person. Any of the foregoing may be done in any manner, without affecting or
impairing the obligations of the Guarantor hereunder.
5. Financial Information. The Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of
Borrower and the Subsidiary Guarantors, any endorsers and/or other guarantors of
all or any part of the Guaranteed Obligations, and of all other circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations, or any part
thereof, that diligent inquiry would reveal, and the Guarantor hereby agrees
that neither the Agent nor any other Holder of Secured Obligations shall have
any duty to advise the Guarantor of information known to any of them regarding
such condition or any such circumstances. In the
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event the Agent or any other Holder of Secured Obligations, in its sole
discretion, undertakes at any time or from time to time to provide any such
information to the Guarantor, such Holder or the Agent shall be under no
obligation (i) to undertake any investigation not a part of its regular business
routine (ii) to disclose any information which such Holder or the Agent pursuant
to accepted or reasonable commercial finance or banking practices, wishes to
maintain confidential or (iii) to make any other or future disclosure of such
information or any other information to the Guarantor.
6. No Marshaling; Reinstatement. The Guarantor consents and
agrees that neither the Agent nor any other Holder of Secured Obligations nor
any Person acting for or on behalf of the Agent or any other Holder of Secured
Obligations shall be under any obligation to xxxxxxxx any assets in favor of the
Guarantor or against or in payment of any or all of the Guaranteed Obligations.
The Guarantor further agrees that, to the extent that Borrower, the Guarantor,
any of the Subsidiary Guarantors or any other guarantor of all or any part of
the Guaranteed Obligations makes a payment or payments to the Agent or any other
Holder of Secured Obligations receives any proceeds of Collateral, 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 Borrower,
the Guarantor, any of the Subsidiary Guarantors, such other guarantors or any
other Person, or their respective estates, trustees, receivers or any other
party, 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
Guaranteed Obligations which has been paid, reduced or satisfied by such amount
shall be reinstated and continued in full force and effect as of the time
immediately proceeding such initial payment, reduction or satisfaction.
7. Waiver of Subrogation. THE GUARANTOR HEREBY IRREVOCABLY
WAIVES ALL RIGHTS OF SUBROGATION (WHETHER CONTRACTUAL, UNDER SECTION 509 OF THE
BANKRUPTCY CODE, UNDER COMMON LAW, OR OTHERWISE) TO THE CLAIMS OF THE HOLDERS OF
SECURED OBLIGATIONS OR THE AGENT AGAINST THE BORROWER AND ALL CONTRACTUAL,
STATUTORY OR COMMON LAW RIGHTS OF CONTRIBUTION, REIMBURSEMENT, INDEMNIFICATION
AND SIMILAR RIGHTS AND "CLAIMS" (AS SUCH TERM IS DEFINED IN THE BANKRUPTCY CODE)
AGAINST THE BORROWER WHICH ARISE IN CONNECTION WITH, OR AS A RESULT OF, THIS
GUARANTY OR PAYMENT BY THE GUARANTOR OF ANY OF THE GUARANTEED OBLIGATIONS.
8. Subordination. The Guarantor agrees that any and all
claims of the Guarantor against any endorser or any other guarantor of all or
any part of the Obligations, or against any of their respective properties,
shall be subordinate and subject in right of payment to the prior payment, in
full, of all of the Guaranteed Obligations. Notwithstanding any right of the
Guarantor to ask, demand, xxx for, take or receive any payment from any
Subsidiary Guarantor, all rights, liens and security interests of the Guarantor,
whether now or hereafter arising and howsoever existing, in any assets of any
Subsidiary Guarantor (whether constituting part of the security or collateral
given to the Agent, for the benefit of itself and the other Holders of Secured
Obligations, to secure payment of all or any part of the Guaranteed Obligations
or otherwise) shall be and hereby are subordinated to the rights of the Agent
and the other Holders of Secured Obligations in those assets. The Guarantor
shall have no rights to possession of any such asset or to foreclose upon any
such asset, whether by judicial action of otherwise, unless and until all of
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the Guaranteed Obligations are indefeasibly paid and performed in full and
financing arrangements between Borrower and the Holders of Secured Obligations
have been terminated. Should any payment, distribution, security or instrument
or proceeds thereof be received by the Guarantor upon or with respect to any
indebtedness of any Subsidiary Guarantor to the Guarantor after the occurrence
and during the continuance of an Event of Default and prior to the satisfaction
of all of the Guaranteed Obligations and the termination of all financing
arrangements between the Borrower and the Holders of Secured Obligations, the
Guarantor shall receive and hold the same in trust, as trustee for the benefit
of the Agent and the other Holders of Secured Obligations and shall forthwith
deliver the same to the Agent, in precisely the form received (except for the
endorsement or assignment of such Guarantor where necessary), for application on
any of the Guaranteed Obligations, due or not due, and, until so delivered, the
same shall be held in trust by the Guarantor as the property of the Agent and
the other Holders of Secured Obligations. If the Guarantor fails to make any
such endorsement or assignment to the Agent, the Agent or any of its officers or
employees are hereby irrevocably authorized to make the same. The Guarantor
agrees that until the Guaranteed Obligations are indefeasibly paid and performed
in full and all financing arrangements between the Borrowers and the Holders of
Secured Obligations have been terminated, the Guarantor will not assign or
transfer to others any claim the Guarantor has or may have against Borrower
except for items payable by the Borrower and deposited by the Guarantor with a
financial institution for payment.
9. Enforcement; Amendments; Waivers. No delay on the part of
the Agent or any other Holder of Secured Obligations in the exercise of any
right or remedy arising under this Guaranty, the Credit Agreement, any of the
other Loan Documents or otherwise with respect to all or any part of the
Guaranteed Obligations, the Collateral or any other guaranty of or security for
all or any part of the Guaranteed Obligations, shall operate as a waiver
thereof, and no single or partial exercise by any such Person of any such right
or remedy shall preclude any further exercise thereof. The remedies set forth
herein are cumulative and not exclusive of any remedies provided by law or the
other Loan Documents. No modification or waiver of any of the provisions of this
Guaranty shall be binding upon the Agent or any other Holder of Secured
Obligations, except as expressly set forth in a writing duly signed and
delivered in accordance with the provisions of Section 11.07 of the Credit
Agreement. Failure by the Agent or any other Holder of Secured Obligations at
any time or times hereafter to require strict performance by Borrower, the
Guarantor, any other guarantor of all or any part of the Guaranteed Obligations
or any other Person of any of the provisions, warranties, terms and conditions
contained in any of the Loan Documents now or at any time or times hereafter
executed by such Persons and delivered to the Agent or any other Holder of
Secured Obligations shall not waive, affect or diminish any right of the Agent
or such Holder of Secured Obligations at any time or times hereafter to demand
strict performance thereof and such right shall not be deemed to have been
waived by any act or knowledge of the Agent or any other Holder of Secured
Obligations, or their respective agents, officers or employees, unless such
waiver is contained in an instrument in writing, directed and delivered to
Borrower or the Guarantor, as applicable, specifying such waiver, and is signed
by the party or parties necessary to give such waiver under Section 11.07 of the
Credit Agreement. No waiver of any Event of Default by the Agent or any other
Holder of Secured Obligations shall operate as a waiver of any other Event of
Default or the same Event of Default on a future occasion, and no action by the
Agent or any other Holder of Secured Obligations permitted hereunder shall in
any way affect or impair the Agent's or such Holder's rights and remedies or the
obligations of the Guarantor under this Guaranty. Any determination
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by a court of competent jurisdiction of the amount of any principal and/or
interest owing by Borrower or the Guarantor to any Holder of Secured Obligations
shall be conclusive and binding on the Guarantor irrespective of whether the
Guarantor was a party to the suit or action in which such determination was
made.
10. Effectiveness; Termination; Release. This Guaranty shall
become effective upon its execution by the Guarantor and shall continue in full
force and effect and may not be terminated or otherwise revoked until the Credit
Agreement and all financing arrangements governed by the Loan Documents among
the Borrower, the Agent and the other Holders of Secured Obligations shall have
been terminated (other than continuing contingent indemnity obligations) and the
Guaranteed Obligations shall have been indefeasibly and fully paid and
discharged. If, notwithstanding the foregoing, the Guarantor shall have any
right under applicable law to terminate or revoke this Guaranty, the Guarantor
agrees that such termination or revocation shall not be effective until a
written notice of such revocation or termination, specifically referring hereto,
signed by the Guarantor, is actually received by the Agent and each of the
Lenders. Such notice shall not affect the right and power of any of the Agent or
any other Holder of Secured Obligations to enforce rights arising prior to
receipt thereof by the Agent and each other Holder of Secured Obligations. If
the Agent or any other Holder of Secured Obligations grants loans or takes other
action after the Guarantor terminates or revokes this Guaranty but before such
Person receives such written notice, the rights of such Person with respect
thereto shall be the same as if such termination or revocation had not occurred.
11. Successors and Assigns. This Guaranty shall be binding
upon the Guarantor and upon its successors and assigns and shall inure to the
benefit of the Agent and the other Holders of Secured Obligations and their
respective successors and assigns; all references herein to Borrower and to the
Guarantor shall be deemed to include their respective successors and assigns.
The successors and assigns of the Guarantor and Borrower shall include, without
limitation, their respective receivers, trustees or debtors-in-possession;
provided, however, that the Guarantor shall not voluntarily assign or transfer
its rights or obligations hereunder without the Agent's prior written consent.
12. Definitions. All references to the singular shall be
deemed to include the plural and vice versa where the context so requires.
13. Payments to be Free of Deductions; Withholding Tax
Exemption. All payments by the Guarantor under this Guaranty shall be made
without setoff or counterclaim and free and clear of, and without deductions of
the type and to the extent described in Section 2.10 of the Credit Agreement. A
delivery by a Lender that is not incorporated under the laws of the United
States of America of its IRS Form W-8BEN or W-8ECI to Borrower pursuant to the
Credit Agreement shall be deemed a delivery of such form to the Guarantor
hereunder.
14. Officer Authority. The undersigned hereby certifies that
he/she has all necessary authority to execute and deliver this Guaranty on
behalf of the Guarantor.
15. GOVERNING LAW. THE AGENT HEREBY ACCEPTS THIS GUARANTY, ON
BEHALF OF ITSELF AND THE OTHER HOLDERS OF SECURED OBLIGATIONS, AT NEW YORK, NEW
YORK, BY ACKNOWLEDGING AND AGREEING TO IT THERE. ANY DISPUTE AMONG THE AGENT,
ANY OTHER HOLDERS
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OF SECURED OBLIGATIONS AND THE GUARANTOR ARISING OUT OF OR RELATED TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS GUARANTY, AND
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN
ACCORDANCE WITH THE INTERNAL LAWS, AND NOT THE CONFLICTS OF LAW PROVISIONS OTHER
THAN THOSE CONTAINED IN NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, OF THE
STATE OF NEW YORK.
16. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION
(B), EACH OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW YORK. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION ANY OBJECTION
THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. THE GUARANTOR AGREES THAT THE AGENT
OR ANY OTHER HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED
AGAINST THE GUARANTOR OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH
PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER THE GUARANTOR OR (2) REALIZE ON
THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. THE GUARANTOR
AGREES THAT IT WILL NOT ASSERT ANY PERMISSIBLE COUNTERCLAIMS IN ANY PROCEEDING
BROUGHT BY SUCH PERSON TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR
THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH
PERSON. THE GUARANTOR WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF
THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED IN THIS
SUBSECTION.
(C) SERVICE OF PROCESS. THE GUARANTOR WAIVES PERSONAL SERVICE
OF ANY PROCESS UPON IT AND, AS ADDITIONAL SECURITY FOR THE OBLIGATIONS,
IRREVOCABLY APPOINTS THE PRENTICE HALL CORPORATION SYSTEM, INC., WHOSE ADDRESS
IS 000 XXXXXXX XXXXXX, XXXXXX, XXX XXXX, 00000, AS THE GUARANTOR'S AGENT FOR THE
PURPOSE OF ACCEPTING SERVICE OF PROCESS ISSUED BY ANY COURT. THE GUARANTOR
IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
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ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH IN ANY
JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF,
CONNECT WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES
HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY
HEREWITH MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
(E) WAIVER OF BOND. THE GUARANTOR WAIVES THE POSTING OF ANY
BOND OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL
PROCESS OR PROCEEDING TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS OR TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER,
PRELIMINARY OR PERMANENT INJUNCTION, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
17. Advice of Counsel. The Guarantor represents and warrants
to the Agent and the other Holders of Secured Obligations that it has discussed
this Guaranty and, specifically, the provisions of Sections 16 hereof, with its
lawyers.
18. Notices. The Guarantor appoints Borrower as the
Guarantor's agent to receive notices and other communications under this
Guaranty. Any such notice or communication received by Borrower under this
Guaranty shall be deemed to have been received by the Guarantor. All such
notices to Borrower shall be given in the manner and to the addresses set forth
in the Credit Agreement.
19. Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
20. Merger. This Guaranty represents the final agreement of
the Guarantor with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, or prior or
subsequent oral agreements, between the Guarantor and the Agent or any other
Holder of Secured Obligations.
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21. Execution in Counterparts. This Guaranty may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
22. Definitions. The singular shall include the plural and
vice versa and any gender shall include any other gender as the context may
require.
23. Section Headings. The section headings herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
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IN WITNESS WHEREOF, this Guaranty has been duly executed by
the Guarantor as of the day and year first set forth above.
AMERICAN CLASSIC VOYAGES CO.
/s/ Jordan X. Xxxxx
By: ______________________________
Name: Jordan X. Xxxxx
Title: Executive Vice President
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