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EXHIBIT 4.(ii)(d)(8)
TABLE OF CONTENTS
GUARANTY AGREEMENT
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SECTION HEADING PAGE
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1. Definitions......................................................................................1
2. Guarantee........................................................................................2
3. Secretary's Rights...............................................................................3
4. Primary Liability................................................................................3
5. Representations and Warranties...................................................................3
6. Continuing Guarantee.............................................................................4
7. Default..........................................................................................4
8. Notices..........................................................................................4
9. Amendments and Supplements.......................................................................5
10.Governing Law....................................................................................5
11.Counterparts.....................................................................................5
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GUARANTY AGREEMENT IN FAVOR OF THE
UNITED STATES OF AMERICA
THIS GUARANTY (this "Guaranty Agreement"), dated this February 10,
2000, is by and between PROJECT AMERICA, INC., a Delaware corporation (the
"Guarantor") TO THE UNITED STATES OF AMERICA (the "United States"), represented
by the SECRETARY OF TRANSPORTATION, acting by and through the MARITIME
ADMINISTRATOR (the "Secretary").
WITNESSETH:
A. WHEREAS, the Guarantor is the parent of Project America Ship I,
Inc., a Delaware corporation (the "Shipowner");
B. WHEREAS, the Shipowner, in connection with the financing of the cost
of construction of the Vessel on the date hereof borrowed certain funds and
created and authorized the issuance of obligations designated either "United
States Government Guaranteed Ship Financing Notes" or "United States Government
Guaranteed Ship Financing Bonds" in the aggregate principal amount of
$534,447,000 (the "Obligations") bearing interest at the rate specified therein;
C. WHEREAS, the Shipowner, on the date hereof, accepted the Secretary's
Commitment to Guarantee Obligations (the "Commitment") pursuant to Title XI of
the Merchant Marine Act, 1936, as amended (the "Act"), whereby the Secretary
authorized a guarantee to be endorsed upon each of the Obligations (the
"Guarantees");
D. WHEREAS, the Shipowner has, in consideration of the issuance of the
Guarantees by the Secretary of the payment of the unpaid interest on, and the
unpaid balance of the principal of the Obligations, pursuant to the terms and
provisions of the Security Agreement, Contract No. MA-13581, dated the date
hereof between the Shipowner and the Secretary (the "Security Agreement"),
issued and delivered to the Secretary a promissory note in the principal amount
of $534,447,000 (said promissory note, as originally executed and as the same
may hereafter be amended, modified, supplemented or endorsed, herein called the
"Secretary's Note");
E. WHEREAS, the Secretary required this Guaranty Agreement from the
Guarantor as an integral part of the consideration offered by or on behalf of
the Shipowner as a condition of the Secretary entering into the Commitment and
issuing the Guarantees, and the Guarantor is entering into this Guaranty
Agreement for the purpose of guaranteeing the Shipowner's obligations to the
Secretary under the Secretary's Note.
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Guarantor hereby agrees as follows:
1. Definitions. Unless otherwise specifically defined herein, the
capitalized terms used herein are defined in Schedule X to the Security
Agreement and any reference therein to other instruments shall have the
respective meaning stated in Schedule X of the Security Agreement or such other
instruments.
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2. Guarantee.
(a) The Guarantor hereby absolutely, irrevocably, and
unconditionally guarantees the due and punctual payment of the principal and
interest on the Secretary's Note. The Guarantor shall be required to make said
payments under this Guaranty Agreement upon receipt of a written notice from the
Secretary which states that the Shipowner has not promptly, completely or
effectively made said payments. The failure of Guarantor to receive such a
written notice or the failure of the Secretary to send said notice shall not
relieve the Guarantor of its obligations under this Guaranty Agreement. This
Guaranty Agreement shall be enforceable and exercisable by the Secretary from
the first day of any failure by the Shipowner to make payment or mandatory
prepayment of the principal of and the interest on the Secretary's Note when the
same shall be due. The Guarantor shall immediately pay to the Secretary or its
designee in immediately available funds, such payments guaranteed herein.
(b) The Guarantor hereby consents and agrees that its obligations
under this Guaranty Agreement will not be discharged by any act or omission to
act of any kind by the Secretary or any other person or any other circumstances
whatsoever (including, but not limited to, any extension, rearrangement, or
renewal with respect to any indebtedness or other obligation of the Shipowner
with or without notice to the Guarantor, any waiver of any right of the
Secretary under the terms of the Secretary's Note, the Security Agreement, the
Mortgage, or this Guaranty Agreement, any release of security, any transfer or
assignment of rights or obligations accruing to the Secretary under the
Secretary's Note, the Security Agreement, the Mortgage, or this Guaranty
Agreement, any corporate reorganization, dissolution, merger, acquisition of or
by or other alteration of the corporate existence or structure of the Shipowner
or the Guarantor, discharge of the Shipowner in bankruptcy, the invalidity,
illegality, or unenforceability of the Secretary's Note, the Security Agreement,
the Mortgage, or this Guaranty Agreement or the absence of any action to enforce
the obligations of the Shipowner) which might constitute a legal or equitable
discharge of the Guarantor; it being the intention of the Guarantor that this
Guaranty Agreement be absolute, continuing, and unconditional and the guarantee
hereunder shall only be discharged by the payment in full of all sums so
guaranteed hereunder.
(c) The Guarantor hereby irrevocably and unconditionally waives:
(1) notice of any of the matters referred to in this Guaranty Agreement and any
action by the Secretary in reliance thereon; (2) all notices which may be
required by statute, rule of law, or otherwise to preserve any rights against
the Guarantor hereunder, including without limitations, any demand, protest,
proof of notice of non-payment of all sums payable under the Secretary's Note or
any notice of any failure on the part of the Shipowner to perform or comply with
any covenant, term, or obligations of any agreement to which it is a party; (3)
any requirement for the enforcement, assertion, or exercise of any right,
remedy, power, or privilege under or with respect to the Mortgage, the Security
Agreement, or the Secretary's Note; (4) any requirement of diligence; (5) any
requirement that the Shipowner be joined as a party to any proceedings for the
enforcement of any provision of this Guaranty Agreement, or that the Secretary
proceed against any other guarantor executing this Guaranty Agreement or any
other guaranty agreement; (6) any and all defenses to payment hereunder, except
the defense of payment already made, and agrees to confess without contesting
liability hereunder for any judgment entered hereon; (7) presentment, demand,
protest, notice of protest and dishonor, notice of intent to accelerate, and
notice of acceptance; or (8) the right to require the Secretary to pursue any
remedy in the Secretary's power whatsoever.
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(d) The Guarantor hereby agrees that this Guaranty Agreement
shall continue to be effective or shall be reinstated, as the case may be, if at
any time payment of any sum hereby guaranteed is rescinded or must be otherwise
restored or returned by the Secretary, upon the insolvency, bankruptcy, or
reorganization of the Shipowner, or otherwise, all as though such payment had
not been made. The Guarantor further agrees that if the maturity of any
obligations guaranteed herein be accelerated by bankruptcy or otherwise, such
maturity shall also be deemed accelerated for the purpose of this Guaranty
Agreement without demand or notice to the Guarantor.
(e) Any amount payable hereunder shall not be subject to any
reduction by reason of any counterclaim, set-off, deduction, abatement, or
otherwise.
(f) The Guarantor shall pay all reasonable costs and expenses
(including, without limitation, attorneys' fees and expenses) incurred in
connection with the enforcement of the obligations of the Guarantor under this
Guaranty Agreement.
(g) The Secretary's Note may be amended, modified, or endorsed
without the consent of the Guarantor.
(h) The Secretary may enforce the Guarantor's obligations
hereunder without in any way first pursuing or exhausting any other rights or
remedies which the Secretary may have against the Shipowner or any other person,
firm, or corporation or against any security the Secretary may hold.
3. Secretary's Rights. The Guarantor authorizes the Secretary, without
notice or demand and without affecting the Guarantor's liability hereunder, to
take and hold security for the payment of this Guaranty Agreement and/or any of
the obligations guaranteed herein and exchange, enforce, waive, and release any
such security; and to apply such security and direct the order or manner of sale
thereof as the Secretary in his discretion may determine; and to obtain a
guarantee of any of the obligations guaranteed herein from any one or more
persons, corporations, or entities whomsoever and at any time or times to
enforce, waive, rearrange, modify, limit or release such other persons,
corporations, or entities from their obligations under such guarantees.
4. Primary Liability. It is expressly agreed that the liability of the
Guarantor for the payment of the obligations guaranteed herein shall be primary
and not secondary.
5. Representations and Warranties. The Guarantor represents and
warrants as follows:
(a) It is a corporation duly organized, validly existing, and in
good standing under the laws of the state of Delaware and has full power and
authority (corporate, legal and other) to execute, deliver, and carry out the
terms of this Guaranty Agreement;
(b) This Guaranty Agreement has been duly authorized, executed,
and delivered by the Guarantor and constitutes the legal, valid, and binding
obligation of the Guarantor enforceable against the Guarantor in accordance with
its terms;
(c) The execution, delivery, and performance by the Guarantor of
this Guaranty
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Agreement does not require the approval or consent of its shareholders or of any
governmental authority and does not contravene the Guarantor's Articles of
Incorporation, or any mortgage, indenture, or other agreement binding upon it,
or any law, regulation, order, judgment, or decree applicable to the Guarantor;
(d) The Guarantor's guarantee pursuant to this Guaranty Agreement
may be expected to benefit, directly or indirectly, the Guarantor; and
(e) The Guarantor has fully adequate financial resources, funds,
and assets to satisfy its obligations under this Guaranty Agreement and the
Guarantor will in the future retain sufficient financial resources, funds, and
assets to fully satisfy its obligations under this Guaranty Agreement.
6. Continuing Guarantee. This Guaranty Agreement is a continuing
guarantee of payment and collectability and shall:
(a) Remain in full force and effect so long as any obligation of
the Shipowner to the Secretary referred to herein exists;
(b) Be binding upon the Guarantor, its successors and assigns;
(c) Be executed and issued for the sole and exclusive benefit of
the United States, and no other party shall be permitted to claim any benefit,
direct or indirect, therefrom. This Guaranty Agreement is nonassignable, any
assignment thereof shall be null and void and have no legal effect whatsoever;
and
(d) Inure to the benefit of, and be enforceable by the Secretary,
his successors and assigns.
7. Default. A default under the terms of this Guaranty Agreement shall
be deemed to occur if the Guarantor fails to make any payment guaranteed
hereunder.
8. Notices. All communications may be made or delivered in person or by
certified or registered mail, postage prepaid, addressed to the Guarantor or the
Secretary as provided below or to such other address as the Guarantor or the
Secretary may hereafter specify in a written notice to the other and all notices
or other communications shall be in writing so addressed and shall be effective
upon receipt by the addressee thereof:
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Guarantor: PROJECT AMERICA, INC.
c/o American Classic Voyages Co.
2 North Riverside Plaza
Chicago, Illinois 60606
Attn: Executive Vice President and
General Counsel
Secretary: SECRETARY OF TRANSPORTATION
c/o Maritime Administration
Department of Transportation
Washington, DC 20590
Attn: Chief, Division of Ship
Financing Contracts
9. Amendments and Supplements. No agreement shall be effective to
change or modify, supplement, amend, or discharge in whole or in part this
Guaranty Agreement unless such agreement is in writing, signed by the Guarantor
and the Secretary.
10. Governing Law. This Guaranty Agreement shall be governed by federal
law of the United States of America or in the absence of applicable federal law
by the laws of the State of Illinois.
11. Counterparts. This Guaranty Agreement may be executed in one or
more counterparts. All such counterparts shall be deemed to be originals and
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, this Guaranty Agreement has been executed by the
Guarantor as of the day and year first above written.
GUARANTOR: PROJECT AMERICA, INC.
(SEAL) By /s/ Jordan B. Allen
---------------------------------
Its Executive Vice President
ATTEST:
By /s/ Pam Stringer
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Its Assistant Secretary
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ACKNOWLEDGED BY:
UNITED STATES OF AMERICA,
SECRETARY OF TRANSPORTATION
MARITIME ADMINISTRATOR
(SEAL) By /s/ Joel C. Richard
---------------------------------
Its Secretary
ATTEST:
By /s/ Sarah J. Washington
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Its Assistant Secretary
