1
4(ii)(a)(5)
EXECUTION COPY
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY ("Guaranty") is made as of February
25, 1999, by Cruise America Travel, Incorporated, a Delaware corporation, DQSC
Property Co., a Delaware corporation, DQSB II, Inc., a Delaware corporation,
Great Ocean Cruise Line, L.L.C., a Delaware limited liability company and Great
River Cruise Line, L.L.C., a Delaware limited liability company (each
individually, a "Guarantor" and collectively, the "Guarantors") 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 Credit Agreement, dated as of February 25, 1999 (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, each of the Guarantors is a direct Subsidiary of
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 each of the Guarantors 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, each of the Guarantors agrees as
follows:
2
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, each of
the Guarantors, jointly and severally, 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 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, each of the Guarantors 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. Each of the Guarantors jointly
and severally and 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 or any of the Guarantors relating to the Credit Agreement, this
Guaranty, 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 any of the Guarantors hereunder; 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"). Each of the Guarantors hereby agrees that this Guaranty is an
absolute guaranty of payment and is not a guaranty of collection.
(c) In the event that any additional Subsidiary is formed or
acquired that is required to become a Guarantor hereunder pursuant to Section
6.10 of the Credit Agreement, such Subsidiary shall execute and deliver to the
Agent, for its benefit and the benefit of the other Holders of Secured
Obligations, a supplement to this Guaranty in the form of Exhibit A attached
hereto within the time period prescribed by Section 6.10 of the Credit
Agreement.
-2-
3
2. Obligations Unconditional. Each of the Guarantors 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 other 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 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 or any of the
Guarantors; or
(x) any change, restructuring or termination of or to the
corporate structure or existence of any Guarantor, Borrower or any
restructuring or refinancing of all or any portion of the Guaranteed
Obligations.
-3-
4
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 any of the Guarantors 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
other Guarantors hereunder, 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 any of the
Guarantors, Borrower or from any other Person on account of the Guaranteed
Obligations or any other liability of any of the Guarantors to the Agent or any
other Holder of Secured Obligations.
4. Waivers. (i) Each of the Guarantors 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 other Guarantor or any other Person to enforce or collect all or
any portion of the Guaranteed Obligations before proceeding against such
Guarantor for the enforcement of such Guarantor's obligations and indebtedness
hereunder, and all other demands whatsoever (and shall not require that the same
be made on Borrower or any Guarantor as a condition precedent to the obligations
of any of the Guarantors 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. Each of
the Guarantors 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. Each of the Guarantors 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.
(ii) Each of the Guarantors 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
-4-
5
foregoing or any other provision hereof, each of the Guarantors 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 such 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 each of the Guarantors 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 each of the Guarantors even
if the Agent or any other Holder of Secured Obligations,
by foreclosing on the real property collateral, has
destroyed any right the Guarantors may have to collect
from the Borrower.
This is an unconditional and irrevocable waiver of any rights and defenses each
of the Guarantors may have because the Guaranteed Obligations are or may be
secured by real property. These rights 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 4(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.
(iii) Each 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, each such 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
-5-
6
and payable had such rights and remedies been permitted to be exercised by the
Agent or such Holder.
(iv) 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 any of the Guarantors hereunder, from time to
time, (a) 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;
(b) to accept partial payments on all or any part of the Guaranteed Obligations;
(c) 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 or any
of the Guarantors, (d) to exchange, enforce, waive and release any such security
or collateral; (e) to apply such security or collateral and direct the order or
manner of sale thereof as in their discretion they may determine; (f) 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 (g) 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 any of the Guarantors
hereunder.
5. Financial Information. Each of the Guarantors hereby assumes
responsibility for keeping itself informed of the financial condition of
Borrower and the other 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 each of the Guarantors hereby
agrees that neither the Agent nor any other Holder of Secured Obligations shall
have any duty to advise any of the Guarantors of information known to any of
them regarding such condition or any such circumstances. In the 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 any of the
Guarantors, 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 any of the Guarantors.
6. No Marshaling; Reinstatement. Each of the Guarantors 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 ▇▇▇▇▇▇▇▇ any assets in
favor of any of the Guarantors or against or in payment of any or all of the
Guaranteed Obligations. Each of the Guarantors further agrees that, to the
extent that Borrower, any of the Guarantors or any other guarantor of all or any
part of the Guaranteed
-6-
7
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,
any of the Guarantors, such other guarantors or any other Person, or their
respective estates, trustees, receivers or any other party, including, without
limitation, any of the Guarantors, 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. EACH 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 ANY SUCH GUARANTOR OF ANY OF THE GUARANTEED OBLIGATIONS.
8. Subordination. Each of the Guarantors agrees that any and all
claims of such 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 any of
the Guarantors to ask, demand, ▇▇▇ for, take or receive any payment from any
other Guarantor, all rights, liens and security interests of such Guarantor,
whether now or hereafter arising and howsoever existing, in any assets of any
other 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. None of the
Guarantors shall have any 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 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 any of the Guarantors upon or with
respect to any indebtedness of any Guarantor to any of the other Guarantors
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 Borrowers and the Holders of Secured
Obligations, such Guarantor shall receive and hold the same in trust, as trustee
for the benefit of
-7-
8
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 such Guarantor as the property of the Agent and
the other Holders of Secured Obligations. If any of the Guarantors 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. Each
of the Guarantors 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, such Guarantor will
not assign or transfer to others any claim of such Guarantor has or may have
against Borrower except for items payable by the Borrower and deposited by any
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, any of the Guarantors, 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 each of the
Guarantors, 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 any of the Guarantors under this Guaranty. Any determination by a
court of competent jurisdiction of the amount of any principal and/or interest
owing by Borrower or any of the Guarantors to any Holder of Secured Obligations
shall
-8-
9
be conclusive and binding on each of the Guarantors irrespective of whether such
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 each of the Guarantors 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, any of the Guarantors shall have
any right under applicable law to terminate or revoke its Guaranty, each of the
Guarantors agrees that such termination or revocation shall not be effective
until a written notice of such revocation or termination, specifically referring
hereto, signed by such 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 any of the Guarantors 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. Notwithstanding anything to the contrary contained in this Guaranty or
any of the other Loan Documents, any Guarantor shall be released from its
obligations hereunder and under the other Loan Documents upon the consummation
of a sale or other disposition of all of the capital stock or membership
interest of such Guarantor by Borrower or another Guarantor which is permitted
under the Credit Agreement or consented to by the Lenders.
11. Successors and Assigns. This Guaranty shall be binding upon each
of the Guarantors and upon their respective 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 Guarantors shall be deemed to include their respective successors and
assigns. The successors and assigns of the Guarantors and Borrower shall
include, without limitation, their respective receivers, trustees or
debtors-in-possession; provided, however, that none of the Guarantors shall
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 Guarantors 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 1001 or 4224 to Borrower pursuant to the Credit Agreement shall
be deemed a delivery of such form to each of the Guarantors hereunder.
-9-
10
14. Officer Authority. Each of the undersigned hereby certifies that
he/she has all necessary authority to execute and deliver this Guaranty on
behalf of the Guarantors for whom he/she has executed and delivered this
Guaranty.
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 OF SECURED OBLIGATIONS AND ANY OF THE GUARANTORS 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. EACH OF THE GUARANTORS AGREES THAT THE
AGENT OR ANY OTHER HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED
AGAINST EACH OF THE GUARANTORS OR ITS PROPERTY IN A COURT IN ANY LOCATION TO
ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER ANY OF THE
GUARANTORS 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. EACH OF THE GUARANTORS AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIBLE COUNTERCLAIMS IN AN 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. EACH OF THE GUARANTORS
WAIVES ANY OBJECTION THAT IT
-10-
11
MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A
PROCEEDING DESCRIBED IN THIS SUBSECTION.
(C) SERVICE OF PROCESS. EACH OF THE GUARANTORS 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 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, AS SUCH GUARANTORS' AGENT FOR
THE PURPOSE OF ACCEPTING SERVICE OF PROCESS ISSUED BY ANY COURT. EACH OF THE
GUARANTORS 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
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. EACH OF THE GUARANTORS 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. Each of the Guarantors 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.
-11-
12
18. Notices. Each of the Guarantors appoints Borrower as such
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 each such 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. Collateral. Each of the Guarantors hereby acknowledges and
agrees that its obligations under this Guaranty are secured pursuant to the
terms and provisions of the Collateral Documents to which it is a party.
21. Merger. This Guaranty represents the final agreement of each of
the Guarantors 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, among any of the Guarantors and the Agent or any
other Holder of Secured Obligations.
22. 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.
23. Definitions. The singular shall include the plural and vice
versa and any general shall include any other gender as the context may require.
24. 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.
-12-
13
IN WITNESS WHEREOF, this Guaranty has been duly executed by each of
the Guarantors as of the day and year first set forth above.
CRUISE AMERICA TRAVEL, INCORPORATED
DQSC PROPERTY CO.
DQSB II, INC.
By: /s/ JORDAN ▇. ▇▇▇▇▇
--------------------------------------
Name: Jordan ▇. ▇▇▇▇▇
Title: Executive Vice President
GREAT RIVER CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co.,
a Managing Member
By: /s/ JORDAN ▇. ▇▇▇▇▇
-------------------------------
Name: Jordan ▇. ▇▇▇▇▇
Title: Executive Vice President
By: DQSB II, Inc., a Managing Member
By: /s/ JORDAN ▇. ▇▇▇▇▇
-------------------------------
Name: Jordan ▇. ▇▇▇▇▇
Title: Executive Vice President
GREAT OCEAN CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co.,
a Managing Member
By: /s/ JORDAN ▇. ▇▇▇▇▇
-------------------------------
Name: Jordan ▇. ▇▇▇▇▇
Title: Executive Vice President
By: DQSB II, Inc., a Managing Member
By: /s/ JORDAN ▇. ▇▇▇▇▇
-------------------------------
Name: Jordan ▇. ▇▇▇▇▇
Title: Executive Vice President
-13-
14
EXHIBIT A
SUPPLEMENT
TO
SUBSIDIARY GUARANTY
Reference is hereby made to the Subsidiary Guaranty (the "Guaranty")
made as of February , 1999, by Cruise America Travel, Incorporated, a Delaware
corporation, DQSC Property Co., a Delaware corporation, DQSB II, Inc., a
Delaware corporation, Great Ocean Cruise Line, L.L.C., a Delaware limited
liability company and Great River Cruise Line, L.L.C., a Delaware limited
liability company (each individually, a "Guarantor" and collectively, the
"Guarantors") in favor of The Chase Manhattan Bank, a New York banking
corporation, as Agent, for its benefit and the benefit of the other "Holders of
Secured Obligations" (as defined in the Credit Agreement). Capitalized terms
used herein shall have the meaning given to them in the Guaranty. By its
execution below, the undersigned [NAME OF NEW GUARANTOR], a , agrees to
become, and does hereby become, a Guarantor under the Guaranty and agrees to be
bound by the Guaranty as if originally a party thereto. By its execution below,
the undersigned represents and warrants as to itself that all of the
representations and warranties contained in the Guaranty are true and correct in
all material respects as of the date hereof.
IN WITNESS WHEREOF, [NAME OF NEW GUARANTOR], a has executed and
delivered this Supplement to the Guaranty as of , .
[NAME OF NEW GUARANTOR]
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
-14-
