AMENDMENT NO. 10 TO LOAN AGREEMENT
Exhibit 10.34
AMENDMENT NO. 10 TO LOAN AGREEMENT
This Amendment No. 10 (the “Amendment”) dated as of November 30,2009, is between Bank of
America, N.A. (the “Bank”) and Ambassadors International, Inc., Cypress Reinsurance, Ltd,
Ambassadors Cruise Group, LLC and Ambassadors, LLC (the “Borrower”).
RECITALS
A. The Bank and the Borrower entered into a certain Loan Agreement dated as of September 1,
2006 (together with any previous amendments, the “Agreement”).
B. The Bank and the Borrower desire to amend the Agreement.
AGREEMENT
1. Definitions. Capitalized terms used but not defined in this Amendment shall have
the meaning given to them in the Agreement.
2. Amendments. The Agreement is hereby amended as follows:
| 2.1 | In Subparagraph 1.1 (a), the amount “Ninety Five Thousand and 00/100 Dollars ($95,000.00)” is changed to “Seventy Thousand and 00/100 Dollars ($70,000.00).” | ||
| 2.2 | In Subparagraph 1.1(c), the amount “Ninety Five Thousand and 00/100 Dollars ($95,000.00)” is changed to “Seventy Thousand and 00/100 Dollars ($70,000.00).” | ||
| 2.3 | In Paragraph 1.2, the date “November 30, 2009” is changed to “December 1, 2010.” | ||
| 2.4 | In Subparagraph 1.5(b), the amount “Ninety Five Thousand and 00/100 Dollars ($95,000.00)” is changed to “Seventy Thousand and 00/100 Dollars ($70,000.00).” | ||
| 2.5 | Subparagraph number 1B.1(a) is hereby amended to read in its entirety as follows: | ||
| “(a) Time deposits with the Bank and owned by the Borrower in an amount not less than Seventy Thousand and 00/100 Dollars ($70,000.00).” | |||
| 2.6 | Paragraph 6.2 is hereby amended to read in its entirety as follows: | ||
| “Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Washington. To the extent that the Bank has greater rights or remedies under federal law, whether as a national bank or otherwise, this paragraph shall not be deemed to deprive the Bank of such rights and remedies as may be available under federal law.” |
-1-
| 2.7 | Paragraph 8.4 is hereby amended to read in its entirely as follows: |
8.4. Dispute Resolution Provision. This paragraph,
including the subparagraphs below, is referred to as the
“Dispute Resolution Provision.” This Dispute Resolution
Provision is a material inducement for the parties entering
into this agreement.
(a) This Dispute Resolution Provision concerns the
resolution of any controversies or claims between the
parties, whether arising in contract, tort or by statute,
including but not limited to controversies or claims that
arise out of or relate to: (i) this agreement (including any
renewals, extensions or modifications); or (ii) any document
related to this agreement (collectively a “Claim”). For the
purposes of this Dispute Resolution Provision only, the term
“parties” shall include any parent corporation, subsidiary
or affiliate of the Bank involved in the servicing,
management or administration of any obligation described or
evidenced by this agreement.
(b) At the request of any party to this agreement, any
Claim shall be resolved by binding arbitration in accordance
with the Federal Arbitration Act (Title 9, U.S. Code) (the
“Act”). The Act will apply even though this agreement
provides that it is governed by the law of a specified
state.
(c) Arbitration proceedings will be determined in
accordance with the Act, the then-current rules and
procedures for the arbitration of financial services
disputes of the American Arbitration Association or any
successor thereof (“AAA”), and the terms of this Dispute
Resolution Provision. In the event of any inconsistency,
the terms of this Dispute Resolution Provision shall
control. If AAA is unwilling or unable to (i) serve as the
provider of arbitration or (ii) enforce any provision of
this arbitration clause, the Bank may designate another
arbitration organization with similar procedures to serve as
the provider of arbitration.
(d) The arbitration shall be administered by AAA and
conducted, unless otherwise required by law, in any U.S.
state where real or tangible personal property collateral
for this credit is located or if there is no such
collateral, in the state specified in the governing law
section of this agreement. All Claims shall be determined by
one arbitrator; however, if Claims exceed Five Million
Dollars ($5,000,000), upon the request of any party, the
Claims shall be decided by three arbitrators. All
arbitration hearings shall commence within ninety (90) days
of the demand for arbitration and close within ninety (90)
days of commencement and the award of the arbitrator(s)
shall be issued within thirty (30) days of the close of the
hearing. However, the arbitrator(s), upon a showing of good
cause, may extend the commencement of the hearing for up to
an additional sixty (60) days. The arbitrator(s) shall
provide a concise written statement of reasons for the
award. The arbitration award may be
-2-
submitted to any court
having jurisdiction to be confirmed and have judgment
entered and enforced.
(e) The arbitrator(s) will give effect to statutes of
limitation in determining any Claim and may dismiss the
arbitration on the basis that the Claim is barred. For
purposes of the application of any statutes of limitation,
the service on AAA under applicable AAA rules of a notice of
Claim is the equivalent of the filing of a lawsuit. Any
dispute concerning this arbitration provision or whether a
Claim is arbitrable shall be determined by the
arbitrator(s), except as set forth at subparagraph (h) of
this Dispute Resolution Provision. The arbitrator(s) shall
have the power to award legal fees pursuant to the terms of
this agreement.
(f) This paragraph does not limit the right of any party
to: (i) exercise self-help remedies, such as but not limited
to, setoff; (ii) initiate judicial or non-judicial
foreclosure against any real or personal property
collateral; (iii) exercise any judicial or power of sale
rights, or (iv) act in a court of law to obtain an interim
remedy, such as but not limited to, injunctive relief, writ
of possession or appointment of a receiver, or additional or
supplementary remedies.
(g) The filing of a court action is not intended to
constitute a waiver of the right of any party, including the
suing party, thereafter to require submittal of the Claim to
arbitration.
(h) Any arbitration or trial by a judge of any Claim will
take place on an individual basis without resort to any form
of class or representative action (the “Class Action
Waiver”).
Regardless of anything else in this Dispute Resolution
Provision, the validity and effect of the Class Action
Waiver may be determined only by a court and not by an
arbitrator. The parties to this Agreement acknowledge that
the Class Action Waiver is material and essential to the
arbitration of any disputes between the parties and is
nonseverable from the agreement to arbitrate Claims. If the
Class Action Waiver is limited, voided or found
unenforceable, then the parties’ agreement to arbitrate
shall be null and void with respect to such proceeding,
subject to the right to appeal the limitation or
invalidation of the Class Action Waiver. The Parties
acknowledge and agree that under no circumstances will a
class action be arbitrated.
(i) By agreeing to binding arbitration, the parties
irrevocably and voluntarily waive any right they may have to
a trial by jury in respect of any Claim. Furthermore,
without intending in any way to limit this agreement to
arbitrate, to the extent any Claim is not arbitrated, the
parties irrevocably and voluntarily waive any right they may
have to a trial by jury in respect of such Claim. This
waiver of jury trial shall remain in
-3-
effect even if the
Class Action Waiver is limited, voided or found
unenforceable. WHETHER THE CLAIM IS DECIDED BY ARBITRATION
OR BY TRIAL BY A JUDGE, THE PARTIES AGREE AND UNDERSTAND
THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP
THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW.
| 2.8 | Paragraph 8.9 is hereby amended to read in its entirety as follows: |
10.8 One Agreement. This Agreement and any related
security or other agreements required by this Agreement,
collectively:
(a) represent the sum of the understandings and agreements
between the Bank and the Borrower concerning this credit;
(b) replace any prior oral or written agreements between the
Bank and the Borrower concerning this credit; and
(c) are intended by the Bank and the Borrower as the final,
complete and exclusive statement of the terms agreed to by
them.
In the event of any conflict between this Agreement and any
other agreements required by this Agreement, this Agreement
will prevail. Any reference in any related document to a
“promissory note” or a “note” executed by the Borrower and
dated as of the date of this Agreement shall be deemed to
refer to this Agreement. as now in effect or as hereafter
amended, renewed, or restated.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY,
EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A
DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
3. Representations and Warranties. When the Borrower signs this Amendment, the
Borrower represents and warrants to the Bank that: (a) there is no event which is, or with notice
or lapse of time or both would be, a default under the Agreement except those events, if any, that
have been disclosed in writing to the Bank or waived in writing by the Bank (b) the representations
and warranties in the Agreement are true as of the date of this Amendment as if made on the date of
this Amendment, (c) this Amendment does not conflict with any law, agreement, or obligation by
which the Borrower is bound, and (d) if the Borrower is a business entity or a trust, this
Amendment is within the Borrower’s powers, has been duly authorized, and does not conflict with any
of the Borrower’s organizational papers.
4. Effect of Amendment. Except as provided in this Amendment, all of the terms and
conditions of the Agreement shall remain in full force and effect.
-4-
5. Counterparts. This Amendment may be executed in counterparts, each of which when
so executed shall be deemed an original, but all such counterparts together shall constitute but
one and the same instrument.
6. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING PAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
This Amendment is executed as of the date stated at the beginning of this Amendment.
| BANK: Bank of America, N.A. |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx, Vice President | ||||
| BORROWER(S): Ambassadors International, Inc. |
||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Xxxx X. Xxxxxxxxx, Chief Financial Officer | ||||
| Cypress Reinsurance Ltd. |
||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Xxxx X. Xxxxxxxxx, Chief Financial Officer | ||||
| Ambassadors Cruise Group, LLC |
||||
| By: | Ambassadors International, Inc., Member | |||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Xxxx X. Xxxxxxxxx, Chief Financial Officer | ||||
| Ambassadors, LLC. |
||||
| By: | Ambassadors International, Inc., Member | |||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Xxxx X. Xxxxxxxxx, Chief Financial Officer | ||||
-5-
