<PAGE> 1
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------------------
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1997
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER: 0-9264
AMERICAN CLASSIC VOYAGES CO.
(Exact name of registrant as specified in its charter)
DELAWARE 31-0303330
(State or other jurisdiction of (I.R.S. Employer identification No.)
incorporation or organization)
TWO NORTH RIVERSIDE PLAZA, CHICAGO, IL 60606
(Address of principal executive offices) (Zip Code)
(312) 258-1890
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
As of May 8, 1997, there were 13,935,694 shares of Common Stock outstanding.
================================================================================
<PAGE> 2
AMERICAN CLASSIC VOYAGES CO.
INDEX
<TABLE>
<CAPTION>
ITEM DESCRIPTION PAGE
<S> <C>
Part I Financial Information:
Item 1. Condensed Consolidated Financial Statements (Unaudited)
Condensed Consolidated Statements of Income for
the Three Months Ended March 31, 1997 and 1996 . . . . . . . . . . . . . . . 3
Condensed Consolidated Balance Sheets at March 31,
1997 and December 31, 1996. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Condensed Consolidated Statements of Cash Flows
for the Three Months Ended March 31, 1997 and
1996. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Notes to Condensed Consolidated Financial Statements . . . . . . . . . . . . 6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations. . . . . . . . . . . . . . . 8
Part II Other Information:
Item 1. Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
2
<PAGE> 3
AMERICAN CLASSIC VOYAGES CO.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(In thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
For the Three Months
Ended March 31,
--------------------------------
1997 1996
-------- --------
<S> <C> <C>
Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 40,372 $ 41,628
Cost of operations (exclusive of depreciation and amortization
shown below) . . . . . . . . . . . . . . . . . . . . . . . . . . 27,139 28,072
-------- --------
Gross profit . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,233 13,556
Selling, general and administrative expenses . . . . . . . . . . . 11,519 13,502
Depreciation and amortization expense . . . . . . . . . . . . . . 3,583 3,448
Impairment write-down (Note 4) . . . . . . . . . . . . . . . . . . -- 38,390
-------- --------
Operating loss . . . . . . . . . . . . . . . . . . . . . . . . . . (1,869) (41,784)
Interest income . . . . . . . . . . . . . . . . . . . . . . . . . 268 241
Interest expense . . . . . . . . . . . . . . . . . . . . . . . . . 1,713 2,125
-------- --------
Loss before income taxes . . . . . . . . . . . . . . . . . . . . . (3,314) (43,668)
Income tax benefit . . . . . . . . . . . . . . . . . . . . . . . . 1,326 397
-------- --------
Net loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ (1,988) $(43,271)
======== ========
Per Share Information:
Average common and common share equivalent shares outstanding . . 13,910 13,770
======== ========
Loss per share . . . . . . . . . . . . . . . . . . . . . . . . . . $ (0.14) $ (3.14)
======== ========
Cash dividends declared per share . . . . . . . . . . . . . . . . $ -- $ --
======== ========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
3
<PAGE> 4
AMERICAN CLASSIC VOYAGES CO.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands, except shares and par value)
<TABLE>
<CAPTION>
(Unaudited) (Audited)
March 31, December 31,
1997 1996
--------- ---------
<S> <C> <C>
ASSETS
Cash and cash equivalents . . . . . . . . . . . . . $ 17,674 $ 17,908
Restricted short-term investments . . . . . . . . . 2,928 2,957
Accounts receivable . . . . . . . . . . . . . . . . 3,377 3,734
Prepaid expenses and other current assets . . . . . 8,538 7,640
--------- ---------
Total current assets . . . . . . . . . . . . . 32,517 32,239
Property and equipment, net . . . . . . . . . . . . 165,752 166,883
Deferred tax asset, net . . . . . . . . . . . . . . 12,101 10,968
Other assets . . . . . . . . . . . . . . . . . . . 1,731 1,774
--------- ---------
Total assets . . . . . . . . . . . . . . . . . $ 212,101 $ 211,864
========= =========
LIABILITIES
Accounts payable . . . . . . . . . . . . . . . . . $ 11,588 $ 10,683
Other accrued expenses . . . . . . . . . . . . . . 20,372 24,532
Current portion of long-term debt . . . . . . . . . 4,100 4,100
Unearned passenger revenues . . . . . . . . . . . . 37,508 31,669
--------- ---------
Total current liabilities . . . . . . . . . . . 73,568 70,984
Long-term debt, less current maturities . . . . . . 84,686 85,898
--------- ---------
Total liabilities . . . . . . . . . . . . . . . 158,254 156,882
--------- ---------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY
Preferred stock, $.01 par value (5,000,000 shares
authorized, none issued and outstanding) . . . . -- --
Common stock, $.01 par value (20,000,000 shares
authorized, 13,935,694 and 13,867,829 shares
issued and outstanding, respectively) . . . . . 139 139
Additional paid-in capital . . . . . . . . . . . . 76,105 75,252
Accumulated deficit . . . . . . . . . . . . . . . . (22,397) (20,409)
--------- ---------
Total stockholders' equity . . . . . . . . . . 53,847 54,982
--------- ---------
$ 212,101 $ 211,864
========= =========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
4
<PAGE> 5
AMERICAN CLASSIC VOYAGES CO.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
For the Three Months
Ended March 31,
-----------------------
1997 1996
-------- --------
<S> <C> <C>
OPERATING ACTIVITIES:
Net loss . . . . . . . . . . . . . . . . . . . . . . . $ (1,988) $(43,271)
Depreciation and amortization . . . . . . . . . . 3,583 3,448
Impairment write-down (Note 4) -- 38,390
Changes in working capital and other:
Working capital changes and other . . . . . . . (4,467) (883)
Unearned passenger revenues . . . . . . . . . . 5,839 11,866
-------- --------
Net cash provided by operating activities . . . . 2,967 9,550
-------- --------
INVESTING ACTIVITIES:
Decrease in restricted short-term investments . . . . 29 6,886
Capital expenditures . . . . . . . . . . . . . . . . . (2,452) (12,054)
-------- --------
Net cash used in investing activities . . . . . . (2,423) (5,168)
-------- --------
FINANCING ACTIVITIES:
Proceeds from borrowings . . . . . . . . . . . . . . . -- 6,903
Repayment of borrowings . . . . . . . . . . . . . . . (1,212) (7,212)
Issuance of common stock . . . . . . . . . . . . . . . 434 23
Deferred financing fees . . . . . . . . . . . . . . . -- (238)
-------- --------
Net cash used in financing activities . . . . . . . (778) (524)
-------- --------
(Decrease) increase in cash and cash equivalents . . . (234) 3,858
Cash and cash equivalents, beginning of period . . . . 17,908 6,048
-------- --------
Cash and cash equivalents, end of period . . . . . . . $ 17,674 $ 9,906
======== ========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the period for:
Interest . . . . . . . . . . . . . . . . . . . . . $ 2,051 $ 2,602
Income taxes . . . . . . . . . . . . . . . . . . . $ 14 $ --
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
5
<PAGE> 6
AMERICAN CLASSIC VOYAGES CO.
NOTES TO CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS
MARCH 31, 1997
(Unaudited)
1. BASIS OF PRESENTATION:
These accompanying unaudited Condensed Consolidated Financial Statements
("Financial Statements") have been prepared pursuant to Securities and Exchange
Commission ("SEC") rules and regulations and should be read in conjunction with
the Consolidated Financial Statements and Notes thereto included on Form 10-K
for the year ended December 31, 1996 (the "Annual Report") for American Classic
Voyages Co. ("AMCV") and its subsidiaries. These Financial Statements include
the accounts of AMCV and its wholly owned subsidiaries, The Delta Queen
Steamboat Co. ("DQSC") and Great Hawaiian Cruise Line, Inc. ("GHCL")
(collectively with such subsidiaries, the "Company"). The following notes to the
Financial Statements highlight significant changes to the notes included in the
Annual Report and such interim disclosures as required by the SEC. These
Financial Statements reflect, in the opinion of management, all adjustments
necessary for a fair presentation of the interim financial statements. All such
adjustments are of a normal and recurring nature. Certain previously reported
amounts have been reclassified to conform to the 1997 presentation.
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent liabilities at the date of the financial statements and the reported
amounts of revenues and expenses during the reporting period. Actual results
could differ from those estimates.
2. RECENT PRONOUNCEMENTS:
In February 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 128, "Earnings Per Share", which
requires dual presentation of basic and fully diluted earnings per share. The
Company will adopt the new standard, as required, in the fourth quarter of
1997. In the interim, the Company will disclose, if material, the pro forma
effect of calculating the Company's earnings per share under the new standard
in the notes to its financial statements. For the quarter ending March 31,
1997, SFAS No. 128 did not have a material impact on the Company's loss per
share calculation.
6
<PAGE> 7
3. LONG-TERM DEBT:
Long-term debt consisted of (in thousands):
<TABLE>
<CAPTION>
March 31, December 31,
1997 1996
-------- ------------
<S> <C> <C>
U.S. Government Guaranteed Ship Financing Note, American Queen Series,
floating rate notes due semi-annually beginning February 24, 1996 through
August 24, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 20,600 $ 21,812
U.S. Government Guaranteed Ship Financing Bond, American Queen Series, 7.68%
fixed rate, sinking fund bonds due semi-annually beginning February 24,
2006 through June 2, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . 36,353 36,353
U.S. Government Guaranteed Ship Financing Note, Independence Series A, floating
rate notes due semi-annually beginning June 7, 1996 through December 7, 2005 11,892 11,892
U.S. Government Guaranteed Ship Financing Bond, Independence Series A, 6.84%
fixed rate sinking fund bonds due semi-annually beginning June 7, 2006
through December 7, 2015 . . . . . . . . . . . . . . . . . . . . . . . . . 13,215 13,215
U.S. Government Guaranteed Ship Financing Note, Independence Series B, floating
rate notes due semi-annually beginning December 7, 1996 through December 7,
2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,186 3,186
U.S. Government Guaranteed Ship Financing Bond, Independence Series B, 7.46%
fixed rate sinking fund bonds due semi-annually beginning June 7, 2006
through December 7, 2015 . . . . . . . . . . . . . . . . . . . . . . . . . 3,540 3,540
Revolving credit facility (maximum availability of $15 million). . . . . . . . . -- --
-------- --------
88,786 89,998
Less current portion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,100 4,100
-------- --------
$ 84,686 $ 85,898
======== ========
</TABLE>
As of March 31, 1997, the Company was in compliance with all covenants under
its various debt agreements.
4. IMPAIRMENT WRITE-DOWN:
As discussed more fully in the Company's Annual Report, in the first quarter of
1996, the Company recognized an impairment write-down of $38.4 million related
to its decision not to renovate or return the Constitution to service. The
impairment write-down was recognized in accordance with SFAS No. 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to
be Disposed of", which the Company adopted effective January 1, 1996. SFAS No.
121 establishes accounting standards for recognizing the impairment of
long-lived assets, identifiable intangibles and goodwill, whether to be disposed
of or to be held and used. The Company reserved for the estimated costs to be
incurred on behalf of the Constitution until its eventual disposition. These
costs include insurance, wet berthing fees and general maintenance of the
vessel. As of March 31, 1997, the balance of this reserve was $2.5 million. The
estimated salvage value for the Constitution of $2.5 million is reflected in
property and equipment on the balance sheet.
5. ACCUMULATED DEFICIT:
Changes in accumulated deficit for the three months ended March 31, 1997 were
(in thousands):
Accumulated deficit at December 31, 1996 . . . . . $(20,409)
Net loss. . . . . . . . . . . . . . . . . . . . . . (1,988)
--------
Accumulated deficit at March 31, 1997 . . . . . . . $(22,397)
========
7
<PAGE> 8
AMERICAN CLASSIC VOYAGES CO.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
GENERAL
American Classic Voyages Co. ("AMCV," or along with its subsidiaries, the
"Company"), is a holding company which owns and controls The Delta Queen
Steamboat Co. ("DQSC") and Great Hawaiian Cruise Line, Inc. ("GHCL"). The
following discusses the Company's consolidated results of operations and
financial condition for the first quarter of 1997 as compared to the first
quarter of 1996. This section should be read in conjunction with the
Management's Discussion and Analysis of Financial Condition and Results of
Operations included in the Company's Annual Report for the year ended December
31, 1996.
The Company, through its various subsidiaries, operates two cruise lines:
"Delta Queen", which owns and operates the American Queen, Mississippi Queen
and Delta Queen steamboats, and "American Hawaii", which owns and operates the
Independence steamship. American Hawaii also owns the Constitution steamship
which was removed from service in June 1995 and is currently in wet berth in
Portland, Oregon and will not be returned to service. The Company wrote-down
the value of the vessel to its estimated salvage value effective March 31,
1996. The Company also owned and operated the Maison Dupuy Hotel ("Hotel")
located in New Orleans, prior to its sale in October 1996.
The Company's operations are seasonal. At Delta Queen, historically there is
greater passenger interest at higher yields in the spring and fall months of
the year and the vessels typically undergo an annual lay-up in December and/or
January. American Hawaii historically experiences greater passenger interest in
the summer and fall months of the year. During the summer months, in
particular, American Hawaii tends to have average occupancy in excess of 100%
as the number of families sharing cabins with children increases significantly
during this period.
Results of operations for the first quarter of 1996 include an impairment
write-down as discussed in Note 4 of the Notes to Condensed Consolidated
Financial Statements. In addition, 1996 operating results included the
operations of the Hotel which was sold in October 1996. American Hawaii is
required to drydock the Independence every 30 months, and as such, the
Independence will be out of service for a four-week period beginning May 17,
1997. As a result of the factors mentioned above, interim results of operations
are not necessarily indicative of results for a full year.
RESULTS OF OPERATIONS
The following tables set forth various financial results and operating
statistics for the three months ended March 31, 1997 and 1996 (certain
previously reported amounts have been reclassified to conform to the 1997
presentation):
FINANCIAL HIGHLIGHTS
<TABLE>
<CAPTION>
For the Three Months
Ended March 31,
-----------------------
1997 1996
-------- --------
(in thousands)
<S> <C> <C>
Revenues . . . . . . . . . . . . . . . . . . . . . . . . $ 40,372 $ 41,628
======== ========
Operating loss . . . . . . . . . . . . . . . . . . . . . $ (1,869) $(41,784)
======== ========
Net loss . . . . . . . . . . . . . . . . . . . . . . . . $ (1,988) $(43,271)
======== ========
</TABLE>
8
<PAGE> 9
OPERATING STATISTICS
<TABLE>
<CAPTION>
For the Three Months
Ended March 31,
--------------------------
1997 1996
--------- --------
<S> <C> <C>
Fare revenue per passenger night . . . . . . . . . . . . . $ 221 $ 204
Total revenue per passenger night . . . . . . . . . . . . . 304 276
Weighted average operating days (1):
DELTA QUEEN . . . . . . . . . . . . . . . . . . . . . 71 75
AMERICAN HAWAII . . . . . . . . . . . . . . . . . . . 90 91
Vessels capacity per day (berths)(2):
DELTA QUEEN . . . . . . . . . . . . . . . . . . . . . 1,026 1,024
AMERICAN HAWAII . . . . . . . . . . . . . . . . . . . 817 817
Capacity passenger nights (3) . . . . . . . . . . . . . . . 146,790 151,349
Passenger nights (4) . . . . . . . . . . . . . . . . . . . 132,889 143,672
Physical occupancy percentage (berths) (5) . . . . . . . . 91% 95%
</TABLE>
- ------------
(1) Weighted average operating days for each cruise line is determined by
dividing capacity passenger nights for each cruise line by the cruise
line's total vessel capacity per day.
(2) Vessel capacity per day represents the number of passengers each cruise
line can carry assuming double occupancy for cabins which accommodate two
or more passengers. Some cabins on the Independence and the American Queen
can accommodate three or four passengers.
(3) Capacity passenger nights is determined by multiplying, for the respective
period, the actual operating days of each vessel by each vessel's capacity
per day.
(4) A passenger night represents one passenger spending one night on a vessel;
for example, one passenger taking a three-night cruise would generate three
passenger nights.
(5) Physical occupancy percentage is passenger nights divided by capacity
passenger nights.
9
<PAGE> 10
QUARTER ENDED MARCH 31, 1997 COMPARED TO QUARTER ENDED MARCH 31, 1996
Consolidated first quarter 1997 revenues decreased $1.3 million to $40.4
million from $41.6 million for the first quarter 1996 representing a $0.7
million increase in cruise revenues offset by a $1.9 million decrease in Hotel
revenues as a result of the sale of the Hotel in October 1996. Delta Queen's
cruise revenues increased $3.6 million, reflecting an 18% increase in fare
revenue per passenger night ("fare per diems"). The increase in fare per diems
as compared to 1996 was attributable to the shifting of the booking cycle of
when a majority of its cabin inventory is sold to its optimal schedule of six
to nine months in advance. American Hawaii's revenues decreased $2.9 million
mainly due to a 12% decrease in passenger nights with a slight increase in fare
per diems. The consolidated fare per diems increased 8% to $221. Consolidated
total revenue per passenger night increased by 10% to $304 due to the increase
of passengers purchasing travel packages at Delta Queen. However, the increase
in travel package revenue was largely offset by an increase in related travel
package expenses.
Consolidated cost of operations decreased to $27.1 million for the first
quarter of 1997 from $28.1 million for the comparable period of 1996. Of the
$28.1 million in 1996, $0.6 million represented Hotel related cost of
operations. American Hawaii's operating costs decreased $1.9 million as a
result of lower variable expenses associated with lower passenger nights. Delta
Queen's operating costs increased $1.6 million primarily due to higher travel
package expenses. Consolidated gross profit for the cruise lines increased $1.0
million as a result of higher revenues at Delta Queen and lower operating
expenses at American Hawaii.
Consolidated selling, general and administrative ("SG&A") expenses decreased to
$11.5 million for the first quarter of 1997 from $13.5 million for the same
period in 1996. Of the $13.5 million in 1996, $0.5 million represented Hotel
related SG&A expenses. Both operating lines realized savings in corporate
overhead expenses as a result of strong cost control measures. Delta Queen's
marketing expenses were approximately 13% lower than the prior year offset
somewhat by a slight increase in American Hawaii's marketing expenses. The $0.2
million increase in depreciation and amortization expense represented a $0.1
million decrease in Hotel related depreciation expense offset by a $0.3 million
increase in cruise depreciation expense.
In the first quarter of 1996, the Company recognized an impairment write-down
of $38.4 million related to its decision not to renovate or return the
Constitution to service. The Company has reserved for the estimated costs to be
incurred on behalf of the Constitution until its eventual disposition. These
costs include insurance, wet berthing fees and general maintenance of the
vessel. As of March 31, 1997, the balance of this reserve was $2.5 million.
Consolidated operating loss for the first quarter of 1997 was $1.9 million as
compared to an operating loss of $3.4 million, excluding the write-down, for
the first quarter of 1996.
Interest expense decreased $0.4 million due to a lower outstanding debt balance
in the first quarter of 1997. The Company's consolidated effective tax rate was
higher in the first quarter of 1997 as compared to the same period in 1996. In
the first quarter of 1996, the Company recognized a valuation allowance for the
full amount of the Federal tax benefit due to the possibility that the deferred
tax asset created may not be realized in the future. The Company subsequently
reviewed its position and in the fourth quarter of 1996 recognized an
adjustment for the full amount of the Federal tax benefit.
LIQUIDITY, CAPITAL RESOURCES AND FINANCIAL CONDITION
Operating Activities
For the three months ended March 31, 1997, cash used in operations before
changes in unearned passenger revenues ("Operating Cash Flow") of $2.9 million
was slightly higher than the $2.3 million used in the prior year due to working
capital changes. Unearned passenger revenues, representing passenger cruise
deposits, increased $5.8 million as of March 31, 1997, reflecting the higher
advance reservation levels at Delta Queen on three boats for the historically
strong spring season and a decrease in American Hawaii's unearned passenger
revenues in anticipation of the upcoming four week out-of-service period
beginning May 17, 1997 for a drydock.
10
<PAGE> 11
Capital Expenditures
Capital expenditures of $2.5 million in the first quarter of 1997 included $1.9
million related to the Delta Queen, Mississippi Queen and American Queen
lay-ups.
The Independence will be out of service for a four-week period beginning May
17, 1997 for a drydock to comply with U.S. Coast Guard requirements. In
addition, 1997 SOLAS upgrades will be made, as well as passenger area
enhancements and the build-out of approximately 25 new cabins. This drydock is
estimated to cost approximately $12.3 million. In addition, with the Company's
decision to relocate the Chicago operations of American Hawaii to New Orleans,
the current Delta Queen operating facility at Robin Street Wharf will be
expanded and upgraded. The work will be completed in phases from the middle of
September 1997 through the end of December 1997, at an approximate cost of $3.0
million.
Debt
As of March 31, 1997, the Company was in compliance with all covenants under
its various debt agreements.
The Company believes it will have adequate access to capital resources, both
internally and externally, to meet its short-term and long-term capital
commitments. Such resources may include cash on hand and the ability to secure
additional financing through the capital markets. The Company continually
evaluates opportunities to increase capacity, particularly with regard to the
American Hawaii business. In addition, the Company also evaluates opportunities
to strategically grow its business. If it would elect to increase capacity or
pursue a strategic business opportunity, the Company may seek to secure
additional financing. Notwithstanding, there can be no assurances that the
Company will choose to increase capacity or strategically grow its business,
or, if it elects to do so, that it will obtain additional financing.
Other
The Federal Maritime Commission ("FMC") regulates passenger vessels with 50 or
more berths departing from U.S. ports and requires that operators post security
to be used in the event the operator fails to provide cruise services, or
otherwise satisfy certain financial standards. The Company has been approved as
a self-insurer by the FMC, and therefore, subject to continued approval, is not
required to post security for passenger cruise deposits. In June 1996, the FMC
issued proposed regulations to increase the financial responsibility
requirements. The Company filed its opposition to the proposal, as it believes
that the FMC's current standards provide passengers with adequate protection in
the event of an operator's non-performance and that further requirements may
impose an undue burden on operators. If implemented, these proposed regulations
would be phased in over time and, among other things, require operators
qualifying as a self-insurer, such as the Company, to satisfy a working capital
test, in addition to the existing net worth test, and to provide third-party
coverage for 25% of its unearned passenger revenue in the form of a surety bond
or similar instrument. At this time, the Company cannot predict if the proposed
changes will be approved as currently constituted, or at all. If they are
implemented, the proposed changes would require that the Company establish a
bond to cover a portion of its passenger deposits and payments, which may
impact the Company's liquidity.
Factors Concerning Forward-Looking Statements
Certain statements in "Management's Discussion and Analysis of Financial
Condition and Results of Operations" constitute "forward-looking statements"
within the meaning of the Private Securities Litigation Reform Act of 1995.
Such forward-looking statements involve known and unknown risks, uncertainties
and other factors which may cause the actual results, performance or
achievements of the Company to be materially different from any future results,
performance or achievements expressed or implied by such forward-looking
statements. Such factors include, among others, the following: general economic
and business conditions which may impact passenger yields and occupancy;
weather patterns affecting either the inland waterways in the Continental U.S.
or the Hawaiian Islands; unscheduled repairs and drydocking of the Company's
vessels; construction delays and/or cost overruns during regularly scheduled
lay-ups and/or drydocks; the impact of changes in laws and implementation of
government regulations; an increase in capacity at American Hawaii or pursuit
of a strategic business opportunity; and the ability to obtain additional
financing, if necessary.
11
<PAGE> 12
AMERICAN CLASSIC VOYAGES CO.
PART II - OTHER INFORMATION
ITEM 1. Legal Proceedings
There are no other material legal proceedings, to which the Company
is a party or of which any of its property is the subject, other
than ordinary routine litigation and claims incidental to the
business. The Company believes it maintains adequate insurance
coverage and reserves for such claims.
ITEM 6. Exhibits and Reports on Form 8-K
a) Exhibits:
4.(ii)(a)(28) Amendment Number 1 to the Third Amended and
Restated Credit Agreement dated as of November
18, 1996 among The Delta Queen Steamboat Co.,
American Classic Voyages Co., the financial
institutions from time to time party thereto
and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Agent.
4.(ii)(a)(29) Amendment Number 2 to the Third Amended and
Restated Credit Agreement dated as of March 26,
1997 among The Delta Queen Steamboat Co.,
American Classic Voyages Co., the financial
institutions from time to time parties thereto
and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Agent.
4.(ii)(a)(30) Master Assumption Agreement and Fourth Master
Amendment to Collateral Documents made as of
March 26, 1997 among The Delta Queen Steamboat
Co., American Classic Voyages Co., Cruise
America Travel, Incorporated, DQSB II, Inc.,
Great River Cruise Line, L.L.C., Great Ocean
Cruise Line, L.L.C. and The Chase Manhattan
Bank (formerly known as Chemical Bank), as
Agent for itself and the Lenders.
4.(ii)(a)(31) Second Amendment of Trust Indenture dated as of
March 26, 1997 by and among Great Ocean Cruise
Line, L.L.C. and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Agent for
itself and the Lenders.
4.(ii)(a)(32) Second Amendment of Trust Indenture dated as of
March 26, 1997 by and among Great River Cruise
Line, L.L.C. and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Agent for
itself and the Lenders.
4.(ii)(a)(33) Assumption of Preferred Ship Mortgage dated
March 26, 1997 by and between Great Ocean
Cruise Line, L.L.C. and The Chase Manhattan
Bank (formerly known as Chemical Bank), as
Trustee and Agent.
4.(ii)(a)(34) Assumption of Preferred Ship Mortgage dated
March 26, 1997 by and between Great River
Cruise Line, L.L.C. and The Chase Manhattan
Bank (formerly known as Chemical Bank), as
Trustee and Agent.
4.(ii)(a)(35) Third Amended and Restated Revolving Loan Note
dated March 26, 1997 in the principal amount of
$7,500,000.00 made by The Delta Queen Steamboat
Co. in favor of The Chase Manhattan Bank
(formerly known as Chemical Bank).
12
<PAGE> 13
4.(ii)(a)(36) Third Amended and Restated Revolving Loan Note
dated March 26, 1997 in the principal amount of
$7,500,000.00 made by The Delta Queen Steamboat
Co. in favor of Hibernia National Bank.
4.(ii)(a)(37) Addendum to Stock Pledge Agreement made as of
March 26, 1997 by and between The Delta Queen
Steamboat Co. and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Agent for
itself and the other Lenders.
4.(ii)(a)(38) Limited Liability Company Pledge Agreement made
as of March 26, 1997 by The Delta Queen
Steamboat Co., as Pledgor, and The Chase
Manhattan Bank (formerly known as Chemical
Bank), as Agent.
4.(ii)(a)(39) Limited Liability Company Pledge Agreement made
as of March 26, 1997 by DQSB II, Inc., as
Pledgor, and The Chase Manhattan Bank (formerly
known as Chemical Bank), as Agent.
4.(ii)(a)(40) Security Agreement dated as of March 26, 1997
by and between DQSB II, Inc. and The Chase
Manhattan Bank (formerly known as Chemical
Bank), as Agent for itself and the Lenders.
4.(ii)(c)(11) Assumption and Supplement No. 1 to First
Preferred Ship Mortgage effective as of
December 31, 1996 made by and among Great AQ
Steamboat, L.L.C., Great AQ Steamboat Co. and
the United States of America, represented by
the Secretary of Transportation, acting by and
through the Maritime Administrator.
4.(ii)(c)(12) Modification and Assumption Agreement entered
into March 25, 1997, effective as of December
31, 1996, among The United States of America,
represented by the Secretary of Transportation,
acting by and through the Maritime
Administrator, Great AQ Steamboat, L.L.C., and
The Bank of New York.
4.(ii)(c)(13) Confirmation of Guaranty Agreement effective as
of December 31, 1996 made by The Delta Queen
Steamboat Co. in favor of the United States of
America, represented by the Secretary of
Transportation, acting by and through the
Maritime Administrator.
4.(ii)(c)(14) Endorsement No. 1 to Secretary's Note from
Great AQ Steamboat, L.L.C. to the United States
of America executed on March 25, 1997,
effective as of December 31, 1996.
4.(ii)(c)(15) Subordination Agreement dated as of March 25,
1997 made by and among Great AQ Steamboat,
L.L.C., The Delta Queen Steamboat Co. and DQSB
II, Inc. and the United States of America,
represented by the Secretary of Transportation,
acting by and through the Maritime
Administrator.
27. Financial data schedule.
b) Reports on Form 8-K:
None.
13
<PAGE> 14
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AMERICAN CLASSIC VOYAGES CO.
By: /s/ Philip C. Calian
------------------------------
Philip C. Calian
Chief Executive Officer
By: /s/ Kathryn F. Gray
------------------------------
Kathryn F. Gray
Controller and Treasurer
Dated: May 13, 1997
-------------------------
14
<PAGE> 1
EXHIBIT 4.(ii)(a)(28)
AMENDMENT NUMBER 1
TO THE
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 22, 1996
AMONG
THE DELTA QUEEN STEAMBOAT CO.,
AMERICAN CLASSIC VOYAGES CO.,
THE FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTY THERETO
AND
THE CHASE MANHATTAN BANK,
AS AGENT
This Amendment Number 1 (this "Amendment") to the Third Amended and
Restated Credit Agreement dated as of April 22, 1996 among The Delta Queen
Steamboat Co., American Classic Voyages Co., the financial institutions from
time to time parties thereto and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Agent (the "Credit Agreement") is dated as of November 18,
1996. Capitalized terms used herein but not otherwise defined herein shall have
the respective meanings assigned to such terms in the Credit Agreement.
1. The Borrower, the Parent, the Lenders and the Agent have
agreed to amend the Credit Agreement, and accordingly, effective as of November
18, 1996, upon satisfaction of the conditions precedent set forth below and in
reliance upon the representations and warranties set forth herein, the Credit
Agreement is hereby amended as follows:
1.1 Section 7.03(i) is amended by adding at the end thereof the
following:
"; and Investments by the Borrower in commercial paper that
would qualify as a Cash Equivalent but for the fact that the
issuer's rating on such commercial paper is not at least A-1
from S&P of P-1 from Moody's, provided that (i) such rating
is at least A-2 from S&P or P-2 from Moody's and (ii) the
aggregate amount of such Investments at any time shall not
exceed $10,000,000;"
2. This Amendment shall become effective as of November 18, 1996
upon satisfaction of the following conditions: (i) as of such date, no Event of
Default or Potential Event of Default shall have occurred and be continuing
under the Credit Agreement as amended by this Amendment; and (ii) the Agent
shall have received a copy of this Amendment duly executed by the Borrower, the
Parent and the Requisite Lenders, together with the Consent attached hereto
executed by the Borrower Subsidiaries named thereon.
3. The Borrower and the Parent hereby represent and warrant that
this Amendment and the Credit Agreement, as amended, constitute legal, valid and
binding obligations of the Borrower and the Parent and are enforceable against
the Borrower and the
<PAGE> 2
Parent in accordance with their respective terms, and that after giving effect
to this Amendment, no Event of Default or Potential Event of Default has
occurred and is continuing.
4. Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement," "hereunder," "hereof," "herein," or
words of like import, and each reference in the other Loan Documents to "the
Credit Agreement," "thereunder," "thereof," "therein," or words of like import,
shall mean and be a reference to the Credit Agreement as amended hereby. Except
as expressly set forth herein, all terms and conditions of the Credit Agreement,
the other Loan Documents and the other documents and agreements executed by the
Borrower or its Affiliates in connection therewith shall remain in full force
and effect and are hereby ratified and confirmed in all respects.
5. This Amendment may be executed by the parties hereto on
separate counterparts and each of said counterparts taken together shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, this Amendment has been duly executed on the date
set forth above.
THE DELTA QUEEN STEAMBOAT CO.,
as Borrower
By: \s\ Jordan B. Allen
-------------------------------
Name: Jordan B. Allen
Title: Vice President
AMERICAN CLASSIC VOYAGES CO.,
as Parent
By: \s\ Jordan B. Allen
-------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
and General Counsel
THE CHASE MANHATTAN BANK,
as Agent and as a Lender
By: \s\ C. C. Wardell
-------------------------------
Name: Christopher C. Wardell
Title: Group Credit Officer
<PAGE> 3
HIBERNIA NATIONAL BANK,
as Co-Agent and as a Lender
By: \s\ Lizette M. Terral
-------------------------------
Name: Lizette M. Terral
Title: Vice President
DEPOSIT GUARANTY NATIONAL BANK,
as a Lender
By: \s\ Gregory A. Moore
-----------------------------
Name: Gregory A. Moore
Title: Vice President
<PAGE> 4
CONSENT
Dated as of November 18, 1996
Each of the undersigned, as a party to certain Collateral Documents in
connection with the Credit Agreement referred to in the foregoing Amendment,
hereby consents to such Amendment and confirms and agrees that (i) each of the
Collateral Documents is and shall continue to be in full force and effect and is
hereby ratified and confirmed in all respects, and (ii) all of the Collateral
described in the Collateral Documents does and shall continue to secure the
payment of all of the Obligations. Capitalized terms used herein are used as
defined in the Credit Agreement.
CRUISE AMERICA TRAVEL, INCORPORATED
GREAT RIVER CRUISE LINE, INC.
GREAT OCEAN CRUISE LINE, INC.
GREAT RIVER TRANSPORTATION CO.
BLACKLAND VISTAS, INC.
By: /s/ Jordan B. Allen
----------------------------
Vice President
<PAGE> 1
EXHIBIT 4.(ii)(a)(29)
AMENDMENT NUMBER 2
TO THE
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 22, 1996
AMONG
THE DELTA QUEEN STEAMBOAT CO.,
AMERICAN CLASSIC VOYAGES CO.,
THE FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTY THERETO
AND
THE CHASE MANHATTAN BANK,
AS AGENT
This Amendment Number 2 (this "Amendment") to the Third Amended and
Restated Credit Agreement dated as of April 22, 1996, as amended by Amendment
Number 1 dated as of November 18, 1996, among The Delta Queen Steamboat Co.,
American Classic Voyages Co., the financial institutions from time to time
parties thereto and The Chase Manhattan Bank (formerly known as Chemical Bank),
as Agent (the "Credit Agreement") is dated as of March 26, 1997. Capitalized
terms used herein but not otherwise defined herein shall have the respective
meanings assigned to such terms in the Credit Agreement.
1. Amendment of Credit Agreement. The Borrower, the Parent, the
Lenders and the Agent have agreed to amend the Credit Agreement, and
accordingly, effective as of March 26, 1997, upon satisfaction of the conditions
precedent set forth below and in reliance upon the representations and
warranties set forth herein, the Credit Agreement is hereby amended as follows:
1.1 Section 1.01 of the Credit Agreement is amended by amending
and restating in their entirety the definitions of "GAQSC," "Pledge Agreements,"
"Restricted Junior Payment" and "Subsidiary" as follows:
"GAQSC" shall mean Great AQ Steamboat Co., a Delaware
corporation (formerly known as Delta Queen Steamboat
Development, Inc.), and Great AQ Steamboat, L.L.C., a
Delaware limited liability company, as its successor by
merger.
"Pledge Agreements" shall mean the Stock Pledge
Agreements and Limited Liability Company Pledge Agreements,
as applicable, executed by (i) the Borrower in connection
with the pledge of the stock of, or its membership interest
in, each of the Borrower Subsidiaries (other than GAQSC), and
(ii) DQSB II, Inc., a Delaware corporation, in connection
with the pledge of its membership interests in each of the
other Borrower Subsidiaries (other than GAQSC), as any of the
same may be amended, restated, supplemented or otherwise
modified from time to time.
<PAGE> 2
"Restricted Junior Payment" shall mean (i) any
dividend or other distribution, direct or indirect, on
account of any shares of any class of capital stock of or
membership interests in Borrower or any of its Subsidiaries,
except a distribution of stock as part of a stock split and
except a dividend or distribution payable solely in shares of
that class of stock or membership interests or in any junior
class of stock or membership interests to the holders of that
class, provided that the issuance of such stock or membership
interests or junior class of stock or membership interests is
not an incurrence of Indebtedness, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any
shares of any class of capital stock of or membership
interests in Borrower or any of its Subsidiaries now or
hereafter outstanding, (iii) any payment made to retire, or
to obtain the surrender of, any outstanding warrants, options
or other rights to acquire shares of any class of capital
stock of or membership interests in Borrower or any of its
Subsidiaries now or hereafter outstanding, (iv) any payment
of a claim for the rescission of the purchase or sale of, or
for material damages arising from the purchase or sale of,
any shares of the capital stock of or membership interests in
Borrower or any of its Subsidiaries or of a claim for
reimbursement, indemnification or contribution arising out of
or related to any such claim for damages or rescission, (v)
any payment of tax-sharing payments, allocated corporate
overhead, guaranty fees or management fees to Parent or any
of its Affiliates and (vi) any payment in the nature of a
loan from Borrower or any of its Subsidiaries to Parent or
any of Parent's Subsidiaries.
"Subsidiary" of a Person shall mean (i) any
corporation more than 50% of the outstanding securities
having ordinary voting power of which shall at the time be
owned or controlled, directly or indirectly, by such Person
or by one or more of its Subsidiaries or by such Person and
one or more of its Subsidiaries, or (ii) any company,
partnership, limited liability company, association, joint
venture or similar business organization more than 50% of the
ownership or membership interests having ordinary voting
power of which shall at the time be so owned or controlled.
and by deleting in its entirety the definition of "Chemical" and substituting
therefor the following definition:
"Chase" or "Chase Bank" shall mean The Chase Manhattan
Bank, a New York banking corporation, and any successor
thereto.
1.2 Section 4.01 of the Credit Agreement is amended by amending and
restating in their entirety subsections (a), (b), (c), (d) and (i) thereof as
follows:
(a) Organization; Corporate Powers. Parent, Borrower
and each of their respective Subsidiaries (i) is a
corporation or limited liability company duly organized,
validly existing and in good standing under the
<PAGE> 3
laws of the jurisdiction of its organization, (ii) is duly
qualified to do business as a foreign corporation or limited
liability company and is in good standing under the laws of
each jurisdiction in which it owns or leases real property or
in which the nature of its business requires it to be so
qualified, except those jurisdictions where the failure to be
in good standing or to so qualify has not had or will not
have a Material Adverse Effect, and (iii) has all requisite
power and authority to own, operate and encumber its property
and assets and to conduct its business as presently conducted
and as proposed to be conducted in connection with and
following the consummation of the transactions contemplated
by the Transaction Documents.
(b) Authority. (i) Parent, Borrower and each of
their respective Subsidiaries has the requisite power and
authority to execute, deliver and perform its obligations
under each of the Transaction Documents executed by it, or to
be executed by it.
(ii) The execution, delivery and performance
(or filing or recording, as the case may be) of each
of the Transaction Documents to which it is party and
the consummation of the transactions contemplated
thereby, have been duly authorized by all necessary
corporate or company action on the part of Parent,
Borrower and each of their respective Subsidiaries,
the respective boards of directors or managers, as
applicable, of any such Person, and, if necessary, the
stockholders or members, as applicable, of any such
Person, and no other corporate or company proceedings
on the part of any such Person are necessary to
consummate such transactions.
(iii) Each of the Transaction Documents to
which it is a party has been duly executed and
delivered (or filed or recorded, as the case may be)
by Parent, Borrower and each of their respective
Subsidiaries and constitutes its legal, valid and
binding obligation, enforceable against it in
accordance with its terms (except as enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and by
general equitable principles), is in full force and
effect (unless terminated in accordance with the terms
thereof) and no term or condition thereof has been
amended, modified or waived from the terms and
conditions contained therein without the prior written
consent of the Agent and the Requisite Lenders or,
where so required, all of the Lenders, and Parent,
Borrower and each of their respective Subsidiaries
and, to the best of Borrower's knowledge, the other
parties thereto have performed and complied in all
material respects with all the material terms,
provisions, agreements and conditions set forth
therein and required to be performed or complied with
by such parties on or before the effective date
thereof, and no default by any such party exists
thereunder.
<PAGE> 4
(c) Subsidiaries. Each of Parent and Borrower have
no Subsidiaries other than those described in Schedule
4.01(c) and those, if any, which are permitted by Section
7.03 to be created after the Effective Date. Parent's only
activities are to hold the stock of its Subsidiaries.
(d) No Conflict. The execution, delivery and
performance of each Transaction Document to which it is a
party by Parent, Borrower and each of their respective
Subsidiaries and each of the transactions contemplated
thereby do not and will not (i) conflict with any Contractual
Obligation of any such Person, any liability resulting from
which would have or be reasonably expected to have a Material
Adverse Effect, or (ii) conflict with the documents of
organization or governance of any such Person, or (iii)
except as set forth on Schedule 4.01(d), conflict with
result in a breach of or constitute (with or without notice
or lapse of time or both) a default under any Requirement of
Law or Contractual Obligation of any such Person, or (iv)
result in or require the creation or imposition of any Lien
whatsoever upon any of the properties or assets of any such
Person (other than Liens in favor of the Agent, for the
benefit of itself and the Holders of Secured Obligations,
arising pursuant to the Loan Documents or Liens permitted
pursuant to Section 7.02(b)), or (v) require any approval of
stockholders or members of any such Person, unless such
approval has been obtained.
(i) Capitalization.
(i) As of the Effective Date, Schedule 4.01(i)
sets forth the number of shares and the relevant
percentages of capital stock held by each shareholder
of the Parent that holds in excess of 5% of the
Capital Stock of the Parent of which the Borrower has
knowledge.
(ii) There are outstanding no shares of any
class of capital stock and no membership interests of
any class (or any securities, instruments, warrants,
option or purchase rights, conversion or exchange
rights, calls, commitments or claims of any character
convertible into or exercisable for capital stock or
membership interests) of:
(A) Borrower other than capital stock
described on Schedule 4.01(i); and
(B) any Subsidiary of the Borrower other
than the capital stock of DQSBII, Inc. and of
Cruise America Travel, Incorporated held by
Borrower and the membership interests in the
other Subsidiaries owned by Borrower and by DQSB
II, Inc. and in each case, other than with
respect to GAQSC, pledged to the Agent for the
benefit of itself
<PAGE> 5
and Holders of Secured Obligations pursuant to
Pledge Agreements.
None of such capital stock or membership interests,
other than with respect to GAQSC, is subject to any
security, instrument, warrant, option or purchase
rights, agreement, conversion or exchange rights,
call, commitment or claim of any right, title or
interest therein or thereto other than pursuant to the
Pledge Agreements. The outstanding capital stock of
each of Parent, Borrower, Cruise America Travel,
Incorporated and DQSB II, Inc. is duly authorized,
validly issued, fully paid and nonassessable.
Borrower and DQSB II, Inc. have been duly admitted as
members of the respective Subsidiaries that are
limited liability companies and have no further
liability to any such Subsidiary for contribution or
otherwise in their capacities as such members.
1.3 Section 6.01 of the Credit Agreement is amended and restated in
its entirety as follows:
6.01. Corporate Existence, Etc. Except as permitted
in Section 7.08, each of Borrower and Parent shall, and shall
cause each of its Subsidiaries to, at all times, maintain its
existence as a corporation or limited liability company, as
applicable, and preserve and keep in full force and effect
its rights and franchises. Each of Borrower and Parent shall
promptly provide the Agent and each of the Lenders with a
complete list of its Subsidiaries upon the occurrence of any
change in the list set forth on Schedule 4.01(c) hereto.
1.4 Section 6.10 is amended by amending and restating the
introductory clause and clause (v) thereof in their entirety as follows:
6.10. Formation of Subsidiaries. The Borrower may
form additional Subsidiaries organized as corporations or
limited liability companies under the laws of one of the
states of the United States provided each of the following
conditions precedent is met in connection therewith:
(v) Borrower shall have executed and/or shall
have caused its appropriate Subsidiary to execute a
Pledge Agreement in respect of all of the stock or
membership interests, as applicable, of such new
Subsidiary and Borrower and any other pledgor
Subsidiary shall have executed and delivered all
financing statements and other documents reasonably
requested by the Agent in connection therewith;
1.5 Section 7.02(a) is amended by adding thereto after the words
"capital stock" in both places where such words appear the words "or membership
interests"; and Section 7.02(b) is amended by adding thereto after the words
"capital stock" in the introductory clause thereof the words "or membership
interests, as applicable,".
<PAGE> 6
1.6 Section 7.13 is amended and restated in its entirety to read as
follows:
7.13. Amendment of Certain Documents. The Parent,
Borrower and their respective Subsidiaries shall not permit
any termination of, or any modification or amendment that is
adverse in any respect to the Lenders to be made to either
the certificate of incorporation or by-laws or the limited
liability company agreement, as applicable, of the Parent,
Borrower or any of their respective Subsidiaries or to the
Tax Sharing Agreement. Except for modification, assumption
and supplemental documents effective as of December 31, 1996,
in connection with the merger of Great AQ Steamboat Co. into
Great AQ Steamboat, L.L.C., Borrower and GAQSC shall not
modify or amend the GAQSC Obligations, the GAQSC Trust
Indenture, the GAQSC Security Agreement, the GAQSC Financial
Agreement, the GAQSC Ship Mortgage, the GAQSC Depository
Agreement or the GAQSC Guaranty without the prior written
consent of the Agent.
1.7 Schedules 4.01(c) and 4.01(i) are amended and restated in their
entirety as set forth in amended Schedules 4.01(c) and 4.01(i), respectively,
attached hereto.
2. Waiver. The Lenders hereby waive any Event of Default or
Potential Event of Default that may have occurred and be continuing prior to the
effectiveness of this Amendment as a result of the creation of DQSB II, Inc. and
the limited liability company Subsidiaries of Borrower and the merger of certain
of the corporate operating Subsidiaries of Borrower into the respective limited
liability company Subsidiaries.
3. Effectiveness. This Amendment and the foregoing waiver
shall become effective as of March 26, 1997 upon satisfaction of the following
conditions: (i) as of such date, no Event of Default or Potential Event of
Default shall have occurred and be continuing under the Credit Agreement as
amended by this Amendment and after giving effect to the foregoing waiver;
and (ii) the Agent shall have received a copy of this Amendment duly executed
by the Borrower, the Parent and the Lenders, together with the other documents
described on the List of Supplemental Closing Documents attached hereto as
Exhibit A.
4. Representation and Warranty. The Borrower and the Parent
hereby represent and warrant that this Amendment, the Credit Agreement as
amended hereby and each of the Loan Documents executed and delivered pursuant to
Section 3 constitute legal, valid and binding obligations of the Borrower and
the Parent and are enforceable against the Borrower, the Parent and each
applicable Borrower Subsidiary in accordance with their respective terms, and
that after giving effect to this Amendment and the waiver contained in Section
2, no Event of Default or Potential Event of Default has occurred and is
continuing.
5. Effect Upon Loan Documents. Upon the effectiveness of this
Amendment, each reference in the Credit Agreement to "this Agreement,"
"hereunder," "hereof," "herein," or words of like import, and each reference in
the other Loan Documents to "the Credit Agreement," "thereunder," "thereof,"
"therein," or words of like import, shall mean and be a reference to the Credit
Agreement as amended hereby. Except as expressly set forth herein, all terms
and conditions of the Credit Agreement, the other Loan Documents and the other
documents and agreements executed by the Borrower or its Affiliates in
connection
<PAGE> 7
therewith shall remain in full force and effect and are hereby ratified and
confirmed in all respects.
6. Counterparts. This Amendment may be executed by the
parties hereto on separate counterparts and each of said counterparts taken
together shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, this Amendment has been duly executed on the
date set forth above.
THE DELTA QUEEN STEAMBOAT CO.,
as Borrower
By: \s\ Jordan B. Allen
-------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
AMERICAN CLASSIC VOYAGES CO.,
as Parent
By: \s\ Jordan B. Allen
-------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
THE CHASE MANHATTAN BANK,
as Agent and as a Lender
By: \s\ Lisa D. Benitez
-------------------------------
Name: Lisa D. Benitez
Title: Vice President
HIBERNIA NATIONAL BANK,
as Co-Agent and as a Lender
By: \s\ Lizette M. Terral
-------------------------------
Name: Lizette M. Terral
Title: Vice President
<PAGE> 8
EXHIBIT A
TO
AMENDMENT NUMBER 2
TO THE
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 22, 1996
AMONG
THE DELTA QUEEN STEAMBOAT CO.,
AMERICAN CLASSIC VOYAGES CO.,
THE FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTY THERETO
AND
THE CHASE MANHATTAN BANK,
AS AGENT
MARCH 26, 1997
LIST OF SUPPLEMENTAL CLOSING DOCUMENTS
A. LOAN DOCUMENTS
1. Amendment Number 2 (the "AMENDMENT") dated as of March 26,
1997 (the "CLOSING DATE") to Third Amended and Restated Credit Agreement dated
as of April 22, 1996, as amended by Amendment Number 1 dated as of November 18,
1996 (as so amended and as amended by the Amendment, the "CREDIT
AGREEMENT"),(1) among The Delta Queen Steamboat Co. ("BORROWER"), American
Classic Voyages Co., the financial institutions from time to time parties
thereto and The Chase Manhattan Bank (formerly known as Chemical Bank) as agent
thereunder (the "AGENT").
2. Master Assumption Agreement and Fourth Master Amendment to
Collateral Documents (the "MASTER ASSUMPTION") executed by DQSB II, Inc.
("DQII"), Great River Cruise Line, L.L.C. ("GRCL"), Great Ocean Cruise Line,
L.L.C. ("GOCL" and, together with DQII and GRCL, the "NEW SUBSIDIARIES") and
Cruise America Travel, Incorporated ("CAT") in favor of the Agent, evidencing
the assumption by each of the New Subsidiaries of obligations under certain of
the Subsidiary Security Agreements, the Subsidiary Guaranty and the Contribution
Agreement and the consent by CAT to the Amendment and the other transactions
contemplated thereby.
3. Addendum to Stock Pledge Agreement dated as of August 3,
1993 (the "STOCK PLEDGE ADDENDUM") executed by Borrower in favor of the Agent,
evidencing the pledge by Borrower of all of its 100% interest in the capital
stock of DQII, together with:
- ------------
(1) All capitalized terms used herein that are defined in the Credit Agreement
shall have the meanings ascribed to them therein unless otherwise specifically
defined herein. Documents are dated the Closing Date unless otherwise
indicated.
<PAGE> 9
a. Stock certificate No. 1 representing 1,000 shares of
common stock of DQII.
b. Undated stock power executed by Borrower in blank with
respect to the stock certificate described above.
c. Acknowledgment of pledge executed by DQII.
4. Limited Liability Company Pledge Agreement (the "BORROWER
LLC PLEDGE AGREEMENT") executed by Borrower in favor of the Agent, evidencing
the pledge by Borrower of its 99% membership interest in each of GRCL and GOCL,
together with:
a. Instructions to register pledge executed by Borrower and
addressed to each of GRCL and GOCL.
b. Initial transaction statements executed by each of GRCL
and GOCL and addressed to the Agent.
5. Limited Liability Company Pledge Agreement (the "DQII LLC
PLEDGE AGREEMENT") executed by DQII in favor of the Agent, evidencing the pledge
by DQII of its 1% membership interest in each of GRCL and GOCL, together with:
a. Instructions to register pledge executed by DQII and
addressed to each of GRCL and GOCL.
b. Initial transaction statements executed by each of GRCL
and GOCL and addressed to the Agent.
6. Second Amendment of Trust Indenture among the Agent, the
Lenders, GRCL and Chase Bank as Trustee (the "DQ TRUSTEE") under the Ship
Mortgage covering the Delta Queen.
7. Second Amendment of Trust Indenture among the Agent, the
Lenders, GOCL and Chase Bank as Trustee (the "MQ TRUSTEE") under the Ship
Mortgage covering the Mississippi Queen.
8. Assumption of Preferred Ship Mortgage (the "GRCL ASSUMPTION")
executed by GRCL in favor of the DQ Trustee, evidencing GRCL's assumption of
obligations under the Ship Mortgage covering the Delta Queen.
9. Assumption of Preferred Ship Mortgage (the "GOCL ASSUMPTION")
executed by GOCL in favor of the MQ Trustee, evidencing GOCL's assumption of
obligations under the Ship Mortgage covering the Mississippi Queen.
10. Security Agreement (the "DQII SECURITY AGREEMENT") executed
by DQII in favor of the Agent, evidencing the grant of a senior security
interest in all of its personal property.
<PAGE> 10
B. UCC FILINGS AND LIEN SEARCH REPORTS
11. UCC-3 amendments to financing statements naming the Agent
as secured party and filed against Borrower in the respective offices of the:
a. Secretary of State of Illinois
b. Recorder of Mortgages of Orleans Parish, Louisiana
12. Post-filing UCC lien search reports of filings against
Borrower in the respective offices of the:
a. Secretary of State of Illinois
b. Recorder of Mortgages of Orleans Parish, Louisiana
13. UCC-1 financing statements naming the Agent as secured
party and filed against DQII in the respective offices of the:
a. Secretary of State of Illinois
b. Recorder of Mortgages of Orleans Parish, Louisiana
14. Post-filing UCC lien search reports of filings against DQII
in the respective offices of the:
a. Secretary of State of Illinois
b. Recorder of Mortgages of Orleans Parish, Louisiana
15. UCC-1 financing statements naming the Agent as secured
party and filed against GRCL in the respective offices of the:
a. Secretary of State of Illinois
b. Recorder of Mortgages of Orleans Parish, Louisiana
16. Post-filing UCC lien search reports of filings against GRCL
in the respective offices of the:
a. Secretary of State of Illinois
b. Recorder of Mortgages of Orleans Parish, Louisiana
17. UCC-1 financing statements naming the Agent as secured
party and filed against GOCL in the respective offices of the:
a. Secretary of State of Illinois
<PAGE> 11
b. Recorder of Mortgages of Orleans Parish, Louisiana
18. Post-filing UCC lien search reports of filings against GOCL
in the respective offices of the:
a. Secretary of State of Illinois
b. Recorder of Mortgages of Orleans Parish, Louisiana
C. COMPANY DOCUMENTS
19. Certificate of Incorporation of Borrower, certified by the
Secretary of State of Delaware.
20. Good Standing Certificate for Borrower from the respective
offices of the:
a. Secretary of State of Delaware
b. Secretary of State of Louisiana
21. Certificate(s) executed by the Secretary or an Assistant
Secretary of Borrower, certifying: (i) the names and true signatures of the
officers of Borrower authorized to execute and deliver the Amendment, the Stock
Pledge Addendum, the Borrower LLC Pledge Agreement and the UCC financing
statements executed by Borrower (the "BORROWER DOCUMENTS"); (ii) that attached
thereto as exhibits are true and correct copies of resolutions adopted by the
Board of Directors of Borrower approving and authorizing, among other things,
the merger of GRTC with and into Borrower and the execution and delivery of the
Borrower Documents; (iii) that attached thereto as an exhibit is a true and
correct copy of the Agreement of Merger dated December 27, 1996 between Great
River Transportation Co. and Borrower; (iv) that there have been no changes to
the Certificate of Incorporation of Borrower since the date of certification
thereof by the Secretary of State of Delaware; and (v) that attached thereto as
an exhibit is a true and correct copy of the By-Laws of Borrower as in effect on
the Closing Date.
22. Certificate of Incorporation of DQII, certified by the
Secretary of State of Delaware.
23. Good Standing Certificate for DQII from the office of the
Secretary of State of Delaware.
24. Certificate(s) executed by the Secretary or an Assistant
Secretary of DQII, certifying: (i) the names and true signatures of the officers
of DQII authorized to execute and deliver the Master Assumption, the DQII LCC
Pledge Agreement, the DQII Security Agreement and the UCC financing statements
executed by DQII (the "DQII DOCUMENTS"); (ii) that attached thereto as an
exhibit is a true and correct copy of a resolution adopted by the Board of
Directors of DQII approving and authorizing, among other things, the execution
and delivery of the DQII Documents; (ii) that there have been no changes to the
Certificate of Incorporation of DQII since the date of certification thereof by
the Secretary of State of
<PAGE> 12
Delaware; and (iv) that attached thereto as an exhibit is a true and correct
copy of the By- Laws of DQII as in affect on the Closing Date.
25. Certificate of Formation of GRCL, certified by the
Secretary of State of Delaware.
26. Good Standing Certificates for GRCL from the respective offices
of the:
a. Secretary of State of Delaware
b. Secretary of State of Louisiana
27. Certificates(s) executed by the Secretary or an Assistant
Secretary of Borrower or DQII, as a Managing Member of GRCL, certifying: (i)
the names and true signatures of persons authorized to execute and deliver the
Master Assumption, the GRCL Assumption and the UCC financing statements executed
by GRCL (the "GRCL DOCUMENTS"); (ii) that attached thereto as exhibits are true
and correct copies of resolutions of the Managing Members of GRCL approving and
authorizing, among other things, the merger of Great River Cruise Line, Inc.
with and into GRCL and the execution and delivery of the GRCL Documents; (iii)
that attached thereto as an exhibit is a true and correct copy of the Agreement
of Merger dated December __, 1996 between Great River Cruise Line, Inc. and
GRCL; (iv) that there have been no changes to the Certificate of Formation of
GRCL since the date of certification thereof by the Secretary of State of
Delaware; and (v) that attached thereto as an exhibit is a true and correct copy
of the Limited Liability Company Agreement for GRCL as in effect on the Closing
Date.
28. Certificate of Formation of GOCL, certified by the
Secretary of State of Delaware.
29. Good Standing Certificates for GOCL from the respective offices
of the:
a. Secretary of State of Delaware
b. Secretary of State of Louisiana
30. Certificates(s) executed by the Secretary or an Assistant
Secretary of Borrower or DQII, as a Managing Member of GOCL, certifying: (i)
the names and true signatures of persons authorized to execute and deliver the
Master Assumption, the GOCL Assumption and the UCC financing statements executed
by GOCL (the "GOCL DOCUMENTS"); (ii) that attached thereto as exhibits are true
and correct copies of resolutions of the Managing Members of GOCL approving and
authorizing, among other things, the merger of Great Ocean Cruise Line, Inc.
with and into GOCL and the execution and delivery of the GOCL Documents; (iii)
that attached thereto as an exhibit is a true and correct copy of the Agreement
of Merger dated December __, 1996 between Great River Ocean Cruise Line, Inc.
and GOCL; (iv) that there have been no changes to the Certificate of Formation
of GOCL since the date of certification thereof by the Secretary of State of
Delaware; and (v) that attached thereto as an exhibit is a true and correct copy
of the Limited Liability Company Agreement for GOCL as in effect on the Closing
Date.
<PAGE> 13
D. MERGER DOCUMENTS
31. Certificate of Ownership and Merger of Great River
Transportation Co. into The Delta Queen Steamboat Co., certified by the
Secretary of State of Delaware.
32. Certificate of Merger of Great River Cruise Line, Inc. into
Great River Cruise Line, L.L.C., certified by the Secretary of State of
Delaware.
33. Certificate of Merger of Great Ocean Cruise Line, Inc. into
Great Ocean Cruise Line, L.L.C., certified by the Secretary of State of
Delaware.
E. OPINIONS
34. Opinion of Rosenberg & Liebentritt, P.C., counsel to
Borrower and the Guarantors, addressed to the Agent and the Lenders.
35. Opinion of Adams and Reese, special Louisiana and maritime
counsel to Borrower and the Guarantors, addressed to the Agent and the Lenders.
F. INSURANCE DOCUMENTS
36. Notices of Assignment of Insurance executed by GRCL and
GOCL.
37. Irrevocable Authorizations to Collect Insurance Claims executed
by GRCL and GOCL.
38. Insurance certificates naming the Agent as an additional
insured.
39. Lender's Loss Payable Endorsements with respect to property
casualty policies.
G. REPLACEMENT NOTES
40. Third Amended and Restated Revolving Loan Notes in the
aggregate maximum principal amount of $15,000,000, executed by Borrower and
payable to each of the Lenders as follows:
The Chase Manhattan Bank $7,500,000
Hibernia National Bank $7,500,000
<PAGE> 1
EXHIBIT 4.(ii)(a)(30)
MASTER ASSUMPTION AGREEMENT
AND
FOURTH MASTER AMENDMENT
TO
COLLATERAL DOCUMENTS
dated as of March 26, 1997
This MASTER ASSUMPTION AGREEMENT AND FOURTH MASTER AMENDMENT TO
COLLATERAL DOCUMENTS ("MASTER ASSUMPTION") is made as of March 26, 1997, among
THE DELTA QUEEN STEAMBOAT CO. (formerly known as DQSC-2, Inc.), a Delaware
corporation ("BORROWER"), AMERICAN CLASSIC VOYAGES CO. (formerly known as The
Delta Queen Steamboat Co.), a Delaware corporation ("PARENT"), CRUISE AMERICA
TRAVEL, INCORPORATED, a Delaware corporation ("CRUISE AMERICA"), DQSB II, Inc.,
a Delaware corporation ("DQII"), GREAT RIVER CRUISE LINE, L.L.C., a Delaware
limited liability company ("GREAT RIVER"), GREAT OCEAN CRUISE LINE, L.L.C., a
Delaware limited liability company ("GREAT OCEAN", and collectively with Cruise
America, DQII and Great River, the "BORROWER SUBSIDIARIES"), and THE CHASE
MANHATTAN BANK (formerly known as Chemical Bank), a New York banking
corporation, as agent (hereinafter in such capacity, the "AGENT") for itself and
the Lenders as referred to and defined in the "Amended Credit Agreement"
described below. Borrower, Parent and the Borrower Subsidiaries are referred to
collectively herein as the "DQ ENTITIES." Unless otherwise defined herein,
capitalized terms used herein shall have the meanings ascribed to them in the
Amended Credit Agreement.
RECITALS: A. Borrower, Parent, certain lenders and the Agent
entered into a certain Credit Agreement dated as of August 3, 1993 (the
"ORIGINAL CREDIT AGREEMENT"). In connection with the Original Credit Agreement,
Parent, Cruise America, Great River Cruise Line, Inc., a Delaware corporation
("GRCL"), and Great Ocean Cruise Line, Inc., a Delaware corporation ("GOCL"),
among other parties, entered into a Guaranty dated as of August 3, 1993 (as
amended from time to time, the "GUARANTY") and a Contribution Agreement dated as
of August 3, 1993 (as amended from time to time, the "CONTRIBUTION AGREEMENT").
To secure their obligations under the Guaranty, GRCL and GOCL, among other
things, each entered into a Security Agreement dated as of August 3, 1993 (as
amended from time to time, the "GR SECURITY AGREEMENT" and the "GO SECURITY
AGREEMENT," respectively), a Preferred Ship Mortgage dated as of August 3, 1993
(as amended from time to time, the "GR Ship Mortgage," which pertains to the
Delta Queen (Official #225875), and the "GO Ship Mortgage," which pertains to
the Mississippi Queen (Official #574200) respectively), a Trust Indenture, with
respect to each Preferred Ship Mortgage (as amended from time to time, the "GR
Trust Indenture," which pertains to the GR Ship Mortgage, and the "GO Trust
Indenture," which pertains to the GO Ship Mortgage, respectively), and a First
Assignment of Insurance dated as of August 3, 1993 (as amended from time to
time, the "GR INSURANCE ASSIGNMENT" and the "GO INSURANCE ASSIGNMENT,"
respectively).
<PAGE> 2
B. The Original Credit Agreement has been superseded by the Third
Amended and Restated Credit Agreement dated as of April 22, 1996, as amended by
Amendment No. 1 thereto dated as of November 18, 1996, and by Amendment No. 2
thereto of even date herewith (as so amended, the "AMENDED CREDIT AGREEMENT"),
among Borrower, Parent, certain lenders and the Agent.
C. GRCL has merged into Great River, with Great River as the
surviving entity, and GOCL has merged into Great Ocean, with Great Ocean as the
surviving entity.
D. Each of the DQ Entities will derive both direct and indirect
benefits from the loans made pursuant to the Amended Credit Agreement.
E. It is a condition precedent to making the loans, advances and
other financial accommodations by the Lenders under the Amended Credit Agreement
that the DQ Entities enter into this Master Assumption to acknowledge and agree
that the Collateral Documents and the liens and security interests granted
thereunder secure the Obligations of Borrower under the Amended Credit
Agreement.
NOW, THEREFORE, in consideration of the premises set forth herein and
for the good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Assumption Agreements. (a) DQII hereby (i) shall become a
party to the Guaranty and to the Contribution Agreement as a Guarantor
thereunder, (ii) assumes all of the obligations of a Guarantor under the
Guaranty and under the Contribution Agreement and agrees to perform in
accordance with their respective terms all of the covenants and obligations
thereunder, and (iii) agrees to be bound in all respects by the terms and
provisions of the Guaranty and the Contribution Agreement, including, without
limitation, Section 16 of the Guaranty, as if DQII were a signatory party
thereto.
(b) Great River hereby (i) shall become a party to the Guaranty and to
the Contribution Agreement as a Guarantor thereunder and to the GR Security
Agreement, the GR Ship Mortgage, the GR Trust Indenture and the GR Insurance
Assignment, (ii) assumes all of the obligations of a Guarantor under the
Guaranty and under the Contribution Agreement and all of the obligations of GRCL
under the GR Security Agreement and the GR Insurance Assignment and agrees to
perform in accordance with their respective terms all of the covenants and
obligations thereunder, (iii) agrees to be bound in all respects by the terms
and provisions of the Guaranty (including, without limitation, Section 16
thereof), the Contribution Agreement, the GR Security Agreement (including,
without limitation, Section 22 thereof) and the GR Insurance Assignment, as if
Great River were a signatory party thereto, and (iv) for Louisiana executory
process purposes, hereby acknowledges to be indebted to the Agent and the
Lenders in the amount of the Guaranteed Obligations (as defined in the GR
Security Agreement) and confesses judgment with respect to all Guaranteed
Obligations. Each reference to GRCL in the GR Security Agreement shall be
deemed to refer to Great River, and all
-2-
<PAGE> 3
Collateral (as defined in the GR Security Agreement) of Great River
shall be subject to the lien of and terms and provisions of the GR Security
Agreement.
(c) Great Ocean hereby (i) shall become a party to the Guaranty and to
the Contribution Agreement as a Guarantor thereunder and to the GO Security
Agreement, the GO Ship Mortgage, the GO Trust Indenture, and the GO Insurance
Assignment, (ii) assumes all of the obligations of a Guarantor under the
Guaranty and under the Contribution Agreement and all of the obligations of GOCL
under the GO Security Agreement and the GO Insurance Assignment and agrees to
perform in accordance with their respective terms all of the covenants and
obligations thereunder, (iii) agrees to be bound in all respects by the terms
and provisions of the Guaranty (including, without limitation, Section 16
thereof), the Contribution Agreement and the GO Security Agreement (including,
without limitation, Section 22 thereof) and the GO Insurance Assignment, as if
Great Ocean were a signatory party thereto, and (iv) for Louisiana executory
process purposes, hereby acknowledges to be indebted to the Agent and the
Lenders in the amount of the Guaranteed Obligations (as defined in the GO
Security Agreement), and confesses judgment with respect to all Guaranteed
Obligations. Each reference to GOCL in the GOCL Security Agreement shall be
deemed to refer to Great Ocean, and all Collateral (as defined in the GO
Security Agreement) of Great Ocean shall be subject to the lien of and the terms
and provisions of the GO Security Agreement.
2. Amendments to Collateral Documents. Each of the DQ Entities
hereby agrees that the Obligations under the Amended Credit Agreement are
secured by the Collateral Documents, including, without limitation, the Security
Agreements, the Guaranty and the Pledge Agreements. All references therein to
"Obligations" under the Original Credit Agreement or any amendment thereof shall
be deemed to include the "Obligations" of the Borrower pursuant to the Amended
Credit Agreement. All references to the "Credit Agreement" shall be deemed to
refer to the Amended Credit Agreement.
3. Reaffirmation. Each of the Parent, Cruise America, DQII,
Great River and Great Ocean (collectively, the "DQ GUARANTORS") hereby consents
to the terms and conditions of the Amended Credit Agreement and reaffirms its
guarantee of the Obligations pursuant to the Guaranty, which Guaranty remains in
full force and effect. Each of the DQ Guarantors acknowledges and represents
that it has received and reviewed a copy of the Amended Credit Agreement and
acknowledges and agrees that the Loan Documents remain in full force and effect
as modified hereby and are hereby ratified and confirmed. The execution of this
Master Assumption shall not operate as a waiver of any right, power or remedy of
the Agent or any Lender, nor constitute a waiver of any provision of the Loan
Documents.
4. Successors and Assigns. This Master Assumption shall be
binding upon each of the DQ Entities and upon their respective successors and
assigns and shall inure to the benefit of the Lenders and the Agent and their
respective successors and assigns; all references herein to any of the "DQ
Entities" shall be deemed to include their respective successors and assigns.
The successors and assigns of such entities shall include, without limitation,
their respective receivers, trustees or debtors-in-possession; provided,
however, that none of such entities shall
-3-
<PAGE> 4
voluntarily assign or transfer its rights or obligations hereunder without the
Agent's prior written consent.
5. Further Assurances. Each of the DQ Entities hereby agrees
from time to time, as and when requested by the Agent, to execute and deliver or
cause to be executed and delivered, all such documents, instruments and
agreements and to take or cause to be taken such further or other action as the
Agent may deem necessary or desirable in order to carry out the intent and
purposes of this Master Assumption and the Loan Documents.
6. GOVERNING LAW. THE AGENT HEREBY ACCEPTS THIS MASTER
ASSUMPTION, ON BEHALF OF ITSELF AS THE AGENT AND AS A LENDER, AND THE OTHER
LENDERS, AT NEW YORK, NEW YORK, BY ACKNOWLEDGING AND AGREEING TO IT THERE. ANY
DISPUTE AMONG THE AGENT, ANY OF THE LENDERS AND ANY OF THE DQ ENTITIES ARISING
OUT OF OR RELATED TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH
THIS MASTER ASSUMPTION AS IT AMENDS THE GUARANTY, THE CONTRIBUTION AGREEMENT AND
THE PLEDGE AGREEMENTS 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, OF THE STATE OF NEW YORK. ANY DISPUTE AMONG THE
AGENT, ANY OF THE LENDERS AND ANY OF THE DQ ENTITIES ARISING OUT OF OR RELATED
TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS MASTER
ASSUMPTION AS IT AMENDS THE SECURITY AGREEMENTS 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, OF THE STATE OF LOUISIANA.
7. 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 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 SUCH JURISDICTION. 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 DQ ENTITIES AGREES THAT THE
AGENT OR ANY LENDER SHALL HAVE THE RIGHT TO PROCEED AGAINST EACH OF THE DQ
ENTITIES OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO (1)
OBTAIN PERSONAL JURISDICTION OVER ANY OF THE DQ ENTITIES OR (2) REALIZE ON THE
COLLATERAL (INCLUDING, WITHOUT LIMITATION, THE REAL PROPERTY COLLATERAL) OR ANY
OTHER SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER
ENTERED IN FAVOR OF
-4-
<PAGE> 5
SUCH PERSON. EACH OF THE DQ ENTITIES AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO REALIZE ON
THE COLLATERAL (INCLUDING, WITHOUT LIMITATION, THE REAL PROPERTY 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 DQ ENTITIES 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. EACH OF THE DQ ENTITIES WAIVES PERSONAL
SERVICE OF ANY PROCESS UPON IT AND, AS ADDITIONAL SECURITY FOR THE OBLIGATIONS,
IRREVOCABLY APPOINTS THE PRENTICE HALL CORPORATION SYSTEM, INC., SUCH DQ
ENTITIES' REGISTERED AGENT, WHOSE ADDRESS IS 500 CENTRAL AVENUE, ALBANY, NEW
YORK 12206, AS SUCH DQ ENTITIES' AGENT FOR THE PURPOSE OF ACCEPTING SERVICE OF
PROCESS ISSUED BY ANY COURT. EACH OF THE DQ ENTITIES 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, CONNECTED 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 HERETO 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 DQ ENTITIES 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 (INCLUDING, WITHOUT
LIMITATION, THE REAL PROPERTY 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.
-5-
<PAGE> 6
8. Advice of Counsel. Each of the DQ Entities represents and
warrants to the Agent and the Lenders that it has discussed this Master
Assumption with its lawyers.
9. Notices. Each of the DQ Entities (other than Borrower)
appoints Borrower as its agent to receive notices and other communications under
this Master Assumption. Any such notice or communication received by Borrower
under this Master Assumption shall be deemed to have been received by each DQ
Entity. All such notices to Borrower shall be given in the manner and to the
addresses set forth in the Amended Credit Agreement.
10. Severability. Wherever possible, each provision of this
Master Assumption shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Master Assumption 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 Master
Assumption.
11. Collateral. Each of the DQ Entities hereby acknowledges and
agrees that its obligations under this Master Assumption are secured under and
pursuant to the terms and provisions of each of the Collateral Documents to
which it is a party.
12. Merger. This Master Assumption and the Assumptions of
Preferred Ship Mortgage by GRCL and GOCL, respectively, represent the final
agreement of each of the DQ Entities and the Agent 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 DQ Entities and the Agent or any Lender.
13. Execution in Counterparts. This Master Assumption 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.
14. Definitions. The singular shall include the plural and vice
versa and any gender shall include any other gender as the context may require.
15. 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.
16. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Master Assumption. In the event
an ambiguity or question of intent or interpretation arises, this Master
Assumption shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party
hereto by virtue of the authorship of any provisions of this Master Assumption.
-6-
<PAGE> 7
IN WITNESS WHEREOF, this Master Assumption has been duly executed by
each of the undersigned as of the day and year first set forth above.
THE DELTA QUEEN STEAMBOAT CO.
(formerly known as DQSC-2, Inc.)
By: \s\ Jordan B. Allen
----------------------------
Name: Jordan B. Allen
Title: Senior Vice President
AMERICAN CLASSIC VOYAGES CO.
(formerly known as The Delta
Queen Steamboat Co.)
By: \s\ Jordan B. Allen
-----------------------------
Name: Jordan B. Allen
Title: Senior Vice President
CRUISE AMERICA TRAVEL,
INCORPORATED
By: \s\ Jordan B. Allen
-----------------------------
Name: Jordan B. Allen
Title: Senior Vice President
GREAT RIVER CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co.,
a Managing Member
By: \s\ Jordan B. Allen
------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
-7-
<PAGE> 8
By: DQSB II, Inc., a Managing Member
By: \s\ Jordan B. Allen
--------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
GREAT OCEAN CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co.,
a Managing Member
By: \s\ Jordan B. Allen
------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
By: DQSB II, Inc., a Managing Member
By: \s\ Jordan B. Allen
--------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
DQSB II, INC.
By: \s\ Jordan B. Allen
--------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
THE CHASE MANHATTAN BANK, as Agent
By: \s\ Lisa D. Benitez
----------------------------------
Name: Lisa D. Benitez
Title: Vice President
-8-
<PAGE> 1
EXHIBIT 4.(ii)(a)(31)
SECOND AMENDMENT OF TRUST INDENTURE
ORIGINAL MORTGAGOR: GREAT OCEAN CRUISE LINE, INC.
ROBIN ST. WHARF
1380 PORT OF NEW ORLEANS PLACE
NEW ORLEANS, LA 70130-1890
ASSUMING PARTY: GREAT OCEAN CRUISE LINE, L.L.C.
ROBIN ST. WHARF
1380 PORT OF NEW ORLEANS PLACE
NEW ORLEANS, LA 70130-1890
TRUSTEE: THE CHASE MANHATTAN BANK, FORMERLY KNOWN
AS CHEMICAL BANK, AS AGENT AND
TRUSTEE FOR THE BENEFIT OF THE LENDERS
(TIN 13-4994650)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
______________________________________________________________________________
This SECOND AMENDMENT OF TRUST INDENTURE (this "Second Amendment")
dated as of the 26th day of March, 1997 is entered into by and among GREAT OCEAN
CRUISE LINE, L.L.C., a Delaware limited liability company ("Mortgagor"), and THE
CHASE MANHATTAN BANK, formerly known as Chemical Bank, a New York banking
corporation, as agent (hereinafter in such capacity, the "Agent" or "Trustee")
for itself and the Lenders (as referred to and as defined in the "Credit
Agreement" described below), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE
PAGES of the Credit Agreement described below and each other financial
institution which from time to becomes a party thereto in accordance with the
provisions thereof (together with their respective successors and assigns
individually, a "Lender" and, collectively, the "Lenders") (the "Lenders" and
the "Mortgagor" being sometimes referred to individually as a "Settlor" and
collectively "Settlors"), and The Chase Manhattan Bank, not in its individual
capacity but as trustee under that certain Trust Indenture dated as of August 3,
1993 by and among Agent, the Lenders to the Original Credit Agreement, and Great
Ocean Cruise Line, Inc. ("Original Mortgagor") (such agreement, the "Original
Trust Indenture", together with any amendments thereto, the "Trust Indenture").
WHEREAS, in connection with that certain Credit Agreement by and among
The Delta Queen Steamboat Co. (formerly known as DQSC-2, Inc.), American Classic
Voyages Co. (formerly known as the Delta Queen Steamboat Co.), Agent and the
original Lenders, dated as of August 3, 1993 (the "Original Credit Agreement",
such agreement, as now or hereafter amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), the Trustee, Original
Mortgagor and the original Lenders to the Original Credit Agreement have
previously entered into the Original Trust Indenture, which is hereby confirmed,
whereunder the Trustee agreed on behalf of Settlors to hold as agent that
certain Preferred Ship Mortgage dated as of August 3, 1993, by Original
Mortgagor in favor of Trustee (the "Original Mortgage"), and related
indebtedness secured thereunder, which Original Mortgage was recorded with the
8th Coast Guard District in PM Book 245, Instrument 64, and which Original
Mortgage affects 100% of the interest of Mortgagor in the vessel "Mississippi
Queen", Official No. 574200; which Original Mortgage has been amended from time
to time, including under an Amendment recorded on April 7, 1995 with the Eighth
Coast Guard District in PM Book 9504, Instrument 226; by Second Amendment
recorded on September 7, 1995 with the National Vessel Documentation Center in
Book 96-05, Instrument 659, and by Third Amendment recorded on March 3, 1997
with the National Vessel Documentation Center in Book 97-17, Instrument 210;
WHEREAS, pursuant to merger, Original Mortgagor was merged into Great
Ocean Cruise Line, L.L.C., as evidenced by the Certificate of Merger filed with
the Delaware Secretary of State on December 27, 1996, effective as of December
31, 1996, a copy of which is attached;
WHEREAS, under an Assumption of Preferred Ship Mortgage of even date
herewith, Mortgagor has confirmed that it has assumed all of Original
Mortgagor's obligations under the Mortgage;
NOW THEREFORE, the parties agree and acknowledge the following:
<PAGE> 2
Mortgagor hereby confirms that it has assumed all of the obligations of
Original Mortgagor under the Mortgage and all other documents executed by
Original Mortgagor in connection with the Credit Agreement, including the Trust
Indenture.
Trustee hereby confirms that it holds as agent the Mortgage and the
indebtedness secured thereby, in trust on behalf of the Settlors, and serves as
Mortgagee under the Mortgage.
In recognition of the merger of Mortgagor and Original Mortgagor, all
references in the Trust Indenture to "Mortgagor" are hereby amended to refer to
Great Ocean Cruise Line, L.L.C.
All references to "Chemical Bank" contained in the Trust Indenture are
hereby amended to refer to "The Chase Manhattan Bank, formerly known as
Chemical Bank".
All of the terms and provisions of the Original Trust Indenture, as
previously amended, except as may be affected by this Second Amendment, shall
remain in full force and effect.
TRUSTEE:
THE CHASE MANHATTAN BANK
(FORMERLY KNOWN AS CHEMICAL BANK)
By: /s/ Lisa D. Benitez
-------------------------------
Title: Vice President
SETTLORS:
THE CHASE MANHATTAN BANK
(FORMERLY KNOWN AS CHEMICAL BANK)
By: /s/ Lisa D. Benitez
-------------------------------
Name: Lisa D. Benitez
Title: Vice President
HIBERNIA NATIONAL BANK
By: /s/ Lizette M. Terral
-------------------------------
Name: Lizette M. Terral
Title: Vice President
GREAT OCEAN CRUISE LINE, L.L.C., a
Delaware limited liability company
BY: The Delta Queen Steamboat Co.,
a managing member
By: /s/ Jordan B. Allen
----------------------------
Name: Jordan B. Allen
Title: Senior Vice President
BY: DQSB II, Inc. a managing member
By: /s/ Jordan B. Allen
---------------------------
Name: Jordan B. Allen
Title: Senior Vice President
<PAGE> 3
ACKNOWLEDGEMENT
STATE OF NEW YORK
COUNTY OF NEW YORK
On this 27th day of March, 1997, before me, the undersigned authority,
duly commissioned and qualified in and for the aforesaid jurisdiction,
personally came and appeared Lisa D. Benitez, appearing herein in her capacity
as Vice President of The Chase Manhattan Bank, formerly known as Chemical Bank,
a New York banking corporation, to me personally known to be the identical
person whose name is subscribed to the foregoing instrument, who declared and
acknowledged in the presence of the undersigned competent witnesses, that she
executed the same on behalf of such with full authority, and that the
instrument is the free act and deed of such Bank, executed for the uses,
purposes and benefits therein expressed.
/s/ H. Scott Kenyon
------------------------
NOTARY PUBLIC
<PAGE> 4
ACKNOWLEDGEMENT
STATE OF ILLINOIS
COUNTY OF COOK
BEFORE ME, the undersigned Notary Public, personally came and appeared Jordan
B. Allen, the duly authorized Senior Vice President and representative of The
Delta Queen Steamboat Co. and DQSB II, Inc., the managing members of Great
Ocean Cruise Line, L.L.C., as duly authorized representative of Great Ocean
Cruise Line, L.L.C. who declared that he is the duly authorized representative
of Great Ocean Cruise Line, L.L.C. and its aforementioned managing members,
and that he signed the above instrument on the authorization of articles of
organization of Great Ocean Cruise Line, L.L.C. and the board of directors of
such managing members and that the same is the free and voluntary act and deed
of said Great Ocean Cruise Line, L.L.C and said members, and of himself in his
capacity as representative thereof, for the uses and purposes therein
expressed.
/s/ Jordan B. Allen
- ----------------------------
Name: Jordan B. Allen
SWORN TO AND SUBSCRIBED BEFORE ME
on the 26th day of March, 1997.
/s/ Theresa H. Reed-Adams
- ------------------------------
NOTARY PUBLIC
My commission expires: 11/22/98
<PAGE> 5
ACKNOWLEDGEMENT
STATE OF LOUISIANA
PARISH OF ORLEANS
On this 23rd day of April, 1997, before me, the undersigned authority, duly
commissioned and qualified in and for the aforesaid jurisdiction, personally
came and appeared Lizette M. Terral, appearing herein in her capacity as Vice
President of Hibernia National Bank, a national bank, to me personally known to
be the identical person whose name is subscribed to the foregoing instrument,
who declared and acknowledged in the presence of the undersigned competent
witnesses, that she executed the same on behalf of such with full authority,
and that the instrument is the free act and deed of such bank, executed for the
uses, purposes and benefits therein expressed.
/s/ Donna A. Byrne
----------------------------
NOTARY PUBLIC
<PAGE> 1
EXHIBIT 4.(ii)(a)(32)
SECOND AMENDMENT OF TRUST INDENTURE
ORIGINAL MORTGAGOR: GREAT RIVER CRUISE LINE, INC.
ROBIN ST. WHARF
1380 PORT OF NEW ORLEANS PLACE
NEW ORLEANS, LA 70130-1890
ASSUMING PARTY: GREAT RIVER CRUISE LINE, L.L.C.
ROBIN ST. WHARF
1380 PORT OF NEW ORLEANS PLACE
NEW ORLEANS, LA 70130-1890
TRUSTEE: THE CHASE MANHATTAN
BANK, FORMERLY KNOWN AS
CHEMICAL BANK, AS AGENT
AND TRUSTEE FOR THE
BENEFIT OF THE LENDERS
(TIN 13-4994650)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
______________________________________________________________________________
This SECOND AMENDMENT OF TRUST INDENTURE (this "Second Amendment")
dated as of the 26th day of March, 1997 is entered into by and among GREAT RIVER
CRUISE LINE, L.L.C., a Delaware limited liability company ("Mortgagor"), and THE
CHASE MANHATTAN BANK, formerly known as Chemical Bank, a New York banking
corporation, as agent (hereinafter in such capacity, the "Agent" or "Trustee")
for itself and the Lenders (as referred to and as defined in the "Credit
Agreement" described below), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE
PAGES of the Credit Agreement described below and each other financial
institution which from time to becomes a party thereto in accordance with the
provisions thereof (together with their respective successors and assigns
individually, a "Lender" and, collectively, the "Lenders") (the "Lenders" and
the "Mortgagor" being sometimes referred to individually as a "Settlor" and
collectively "Settlors"), and The Chase Manhattan Bank, not in its individual
capacity but as trustee under that certain Trust Indenture dated as of August 3,
1993 by and among Agent, the Lenders to the Original Credit Agreement, and Great
River Cruise Line, Inc. ("Original Mortgagor") (such agreement, the "Original
Trust Indenture", together with any amendments thereto, the "Trust Indenture").
WHEREAS, in connection with that certain Credit Agreement by and among
The Delta Queen Steamboat Co. (formerly known as DQSC-2, Inc.), American Classic
Voyages Co. (formerly known as the Delta Queen Steamboat Co.), Agent and the
original Lenders, dated as of August 3, 1993 (the "Original Credit Agreement",
such agreement, as now or hereafter amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), the Trustee, Original
Mortgagor and the original Lenders to the Original Credit Agreement have
previously entered into the Original Trust Indenture, which is hereby confirmed,
whereunder the Trustee agreed on behalf of Settlors to hold as agent that
certain Preferred Ship Mortgage dated as of August 3, 1993, by Original
Mortgagor in favor of Trustee (the "Original Mortgage"), and related
indebtedness secured thereunder, which Original Mortgage was recorded with the
8th Coast Guard District in PM Book 245, Instrument 65, and which Original
Mortgage affects 100% of the interest of Mortgagor in the vessel "Delta Queen",
Official No. 225875; which Original Mortgage has been amended from time to time,
including under an Amendment recorded on April 7, 1995 with the Eighth Coast
Guard District in PM Book 9504, Instrument 227; by Second Amendment recorded on
September 7, 1995 with the National Vessel Documentation Center in Book 96-03,
Instrument 673, and by Third Amendment recorded on March 3, 1997 with the
National Vessel Documentation Center in Book 97-17, Instrument 209;
WHEREAS, pursuant to merger, Original Mortgagor was merged into Great
River Cruise Line, L.L.C., as evidenced by the Certificate of Merger filed with
the Delaware Secretary of State on December 27, 1996, effective as of December
31, 1996, a copy of which is attached;
WHEREAS, under an Assumption of Preferred Ship Mortgage of even date
herewith, Mortgagor has confirmed that it has assumed all of Original
Mortgagor's obligations under the Mortgage;
NOW THEREFORE, the parties agree and acknowledge the following:
Mortgagor hereby confirms that it has assumed all of the obligations
of Original Mortgagor under the Mortgage and all other documents executed by
Original Mortgagor in connection with the Credit Agreement, including the Trust
Indenture.
<PAGE> 2
Trustee hereby confirms that it holds as agent the Mortgage and the
indebtedness secured thereby, in trust on behalf of the Settlors, and serves as
Mortgagee under the Mortgage.
In recognition of the merger of Mortgagor and Original Mortgagor, all
references in the Trust Indenture to "Mortgagor" are hereby amended to refer to
Great River Cruise Line, L.L.C.
All references to "Chemical Bank" contained in the Trust Indenture are
hereby amended to refer to "The Chase Manhattan Bank, formerly known as Chemical
Bank".
All of the terms and provisions of the Original Trust Indenture, as
previously amended, except as may be affected by this Second Amendment, shall
remain in full force and effect.
TRUSTEE:
THE CHASE MANHATTAN BANK
(FORMERLY KNOWN AS CHEMICAL BANK)
By: /s/ Lisa D. Benitez
-------------------------------
Title: Vice President
SETTLORS:
THE CHASE MANHATTAN BANK
(FORMERLY KNOWN AS CHEMICAL BANK)
By: /s/ Lisa D. Benitez
-------------------------------
Name: Lisa D. Benitez
Title: Vice President
HIBERNIA NATIONAL BANK
By: /s/ Lizette M. Terral
-------------------------------
Name: Lizette M. Terral
Title: Vice President
GREAT OCEAN CRUISE LINE, L.L.C., a
Delaware limited liability company
BY: The Delta Queen Steamboat Co.,
a managing member
By: /s/ Jordan B. Allen
----------------------------
Name: Jordan B. Allen
Title: Senior Vice President
BY: DQSB II, Inc. a managing member
By: /s/ Jordan B. Allen
---------------------------
Name: Jordan B. Allen
Title: Senior Vice President
<PAGE> 3
ACKNOWLEDGEMENT
STATE OF NEW YORK
COUNTY OF NEW YORK
On this 27th day of March, 1997, before me, the undersigned authority,
duly commissioned and qualified in and for the aforesaid jurisdiction,
personally came and appeared Lisa D. Benitez, appearing herein in her capacity
as Vice President of The Chase Manhattan Bank, formerly known as Chemical Bank,
a New York banking corporation, to me personally known to be the identical
person whose name is subscribed to the foregoing instrument, who declared and
acknowledged in the presence of the undersigned competent witnesses, that she
executed the same on behalf of such with full authority, and that the
instrument is the free act and deed of such Bank, executed for the uses,
purposes and benefits therein expressed.
/s/ H. Scott Kenyon
-----------------------------
NOTARY PUBLIC
<PAGE> 4
ACKNOWLEDGEMENT
STATE OF ILLINOIS
COUNTY OF COOK
BEFORE ME, the undersigned Notary Public, personally came and appeared Jordan
B. Allen, the duly authorized Senior Vice President and representative of The
Delta Queen Steamboat Co. and DQSB II, Inc., the managing members of Great
River Cruise Line, L.L.C., as duly authorized representative of Great River
Cruise Line, L.L.C. who declared that he is the duly authorized representative
of Great River Cruise Line, L.L.C. and its aforementioned managing members,
and that he signed the above instrument on the authorization of articles of
organization of Great River Cruise Line, L.L.C. and the board of directors of
such managing members and that the same is the free and voluntary act and deed
of said Great River Cruise Line, L.L.C and said members, and of himself in his
capacity as representative thereof, for the uses and purposes therein
expressed.
/s/ Jordan B. Allen
- ----------------------------
Name: Jordan B. Allen
SWORN TO AND SUBSCRIBED BEFORE ME
on the 26th day of March, 1997.
/s/ Theresa H. Reed-Adams
- ------------------------------
NOTARY PUBLIC
My commission expires: 11/22/98
<PAGE> 5
ACKNOWLEDGEMENT
STATE OF LOUISIANA
PARISH OF ORLEANS
On this 23rd day of April, 1997, before me, the undersigned authority, duly
commissioned and qualified in and for the aforesaid jurisdiction, personally
came and appeared Lizette M. Terral, appearing herein in her capacity as Vice
President of Hibernia National Bank, a national bank, to me personally known to
be the identical person whose name is subscribed to the foregoing instrument,
who declared and acknowledged in the presence of the undersigned competent
witnesses, that she executed the same on behalf of such with full authority,
and that the instrument is the free act and deed of such bank, executed for the
uses, purposes and benefits therein expressed.
/s/ Donna A. Byrne
----------------------------
NOTARY PUBLIC
<PAGE> 1
EXHIBIT 4.(ii)(a)(33)
ASSUMPTION OF PREFERRED SHIP MORTGAGE
ON 100.000% OF THE MISSISSIPPI QUEEN
OFFICIAL NO. 574200
EXECUTED BY
GREAT OCEAN CRUISE LINE, L.L.C.
(T.I.N. 72-1351947)
IN FAVOR OF
THE CHASE MANHATTAN BANK,
FORMERLY KNOWN AS
CHEMICAL BANK, AS TRUSTEE AND AGENT ("MORTGAGEE")
MORTGAGEE'S PERCENTAGE OF INTEREST IN MORTGAGE: 100.000%
ON THE 26TH DAY OF MARCH , 1997
FOR THE PRINCIPAL SUM OF $25,000,000.00, PLUS
INTEREST, EXPENSES, FEES AND PROTECTIVE ADVANCES
GROSS TONNAGE: 3364
NET TONNAGE: 1684
YEAR BUILT: 1976
LOCATION OF MORTGAGED VESSEL: NEW ORLEANS, LOUISIANA
HAILING PORT OF MORTGAGED VESSEL: NEW ORLEANS, LOUISIANA
ORIGINAL MORTGAGOR: GREAT OCEAN CRUISE LINE, INC.
ASSUMING PARTY: GREAT OCEAN CRUISE LINE, L.L.C.
<PAGE> 2
ASSUMPTION OF PREFERRED SHIP MORTGAGE
================================================================================
INFORMATION REQUIRED UNDER 46 CFR '67.239:
ROBIN ST. WHARF
1380 PORT OF NEW ORLEANS PLACE
NEW ORLEANS, LA 70130-1890
ASSUMING PARTY: GREAT OCEAN CRUISE LINE, L.L.C.
ROBIN ST. WHARF
1380 PORT OF NEW ORLEANS PLACE
NEW ORLEANS, LA 70130-1890
TRUSTEE: THE CHASE MANHATTAN BANK, FORMERLY KNOWN
AS CHEMICAL BANK, AS AGENT AND
TRUSTEE FOR THE BENEFIT OF THE LENDERS
(TIN 13-4994650)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
Date of Assumption: March, 1997
================================================================================
Principal obligations secured, direct or contingent,
exclusive of interest, expenses and fees, pursuant to
46 U.S.C.A '31321 (b) (3) and 46 CFR '67.235 (a) (2) (iii): $25,000,000.00
Description of Vessel:
Name: Mississippi Queen; Official Number: 574200; Gross Tonnage: 3364;
Net Tonnage: 1684; Year Built: 1976; Hailing Port: New Orleans, Louisiana;
Grantor's Percentage of Interest: 100.00%. Location of Vessel: New Orleans,
Louisiana.
================================================================================
ASSUMPTION OF PREFERRED SHIP MORTGAGE
ASSUMPTION OF PREFERRED SHIP MORTGAGE MADE AND ENTERED INTO BY AND BETWEEN THE
ABOVE NAMED MORTGAGOR IN FAVOR OF THE ABOVE-NAMED MORTGAGEE, ENCUMBERING THE
VESSEL DESCRIBED ABOVE.
BE IT KNOWN, THAT ON THIS 26TH DAY OF MARCH, 1997;
IN THE PRESENCE OF THE WITNESSES HEREINAFTER NAMED AND UNDERSIGNED,
PERSONALLY CAME AND APPEARED:
GREAT OCEAN CRUISE LINE, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("MORTGAGOR"), WHOSE LOUISIANA MAILING ADDRESS IS ROBIN STREET
WHARF,1380 PORT OF NEW ORLEANS PLACE, NEW ORLEANS, LA 70130, WHOSE
TAXPAYER IDENTIFICATION NUMBER IS 72-1351947, SUCCESSOR BY MERGER TO
GREAT OCEAN CRUISE LINE, INC., A DELAWARE CORPORATION, AS EVIDENCED BY
CERTIFICATE OF MERGER FILED WITH THE DELAWARE SECRETARY OF STATE ON
DECEMBER 27, 1996, BUT EFFECTIVE AS OF DECEMBER 31, 1996, REPRESENTED
HEREIN BY AND THROUGH THE DELTA QUEEN STEAMBOAT CO., A DELAWARE
CORPORATION, A MANAGING MEMBER, ITSELF APPEARING THROUGH JORDAN B.
ALLEN, ITS SENIOR VICE PRESIDENT AND DULY AUTHORIZED REPRESENTATIVE
PURSUANT TO A RESOLUTION OF ITS BOARD OF DIRECTORS, A CERTIFIED COPY OF
WHICH IS ATTACHED HERETO, AND DQSB II, INC., A DELAWARE CORPORATION, A
MANAGING MEMBER, ITSELF APPEARING THROUGH JORDAN B. ALLEN, ITS SENIOR
VICE PRESIDENT AND DULY AUTHORIZED REPRESENTATIVE PURSUANT TO A
RESOLUTION OF ITS BOARD OF DIRECTORS, A CERTIFIED COPY OF WHICH IS
ATTACHED HERETO; WHICH MANAGING MEMBERS ARE AUTHORIZED UNDER THE TERMS
OF MORTGAGOR'S OPERATING AGREEMENT AND A UNANIMOUS CONSENT RESOLUTION OF
ITS MEMBERS, A CERTIFIED COPY OF WHICH IS ATTACHED HERETO;
GREAT OCEAN CRUISE LINE, INC., WHOSE LEGAL SUCCESSOR BY MERGER IS GREAT
OCEAN CRUISE LINE, L.L.C., APPEARING HEREIN THROUGH ITS DULY AUTHORIZED
REPRESENTATIVE ("ORIGINAL MORTGAGOR");
THE CHASE MANHATTAN BANK, A BANK ORGANIZED UNDER THE LAWS OF THE STATE
OF NEW YORK, FORMERLY KNOWN AS CHEMICAL BANK, IN ITS CAPACITY AS AGENT
AND TRUSTEE FOR THE LENDERS UNDER THE
<PAGE> 3
PREFERRED SHIP MORTGAGE
PAGE 2
TRUST INDENTURE ("MORTGAGEE");
WHEREAS, GREAT OCEAN CRUISE LINE, INC. ("ORIGINAL MORTGAGOR") GRANTED
THAT CERTAIN PREFERRED SHIP MORTGAGE, DATED AUGUST 3, 1993 (THE "ORIGINAL
MORTGAGE", TOGETHER WITH ANY AMENDMENTS THERETO, INCLUDING THIS ASSUMPTION, THE
"MORTGAGE"), WHICH ORIGINAL MORTGAGE WAS RECORDED WITH THE EIGHT COAST GUARD
DISTRICT ON AUGUST 16, 1993 AT 9:24 A.M. IN PM BOOK 245, INSTR. 64; AND
WHEREAS, THE ORIGINAL MORTGAGE WAS GRANTED TO SECURE PAYMENT OF THE
OBLIGATIONS (AS DEFINED THEREIN), UP TO A MAXIMUM SECURED PRINCIPAL AMOUNT SET
FORTH THEREIN, TOGETHER WITH INTEREST, COSTS, ATTORNEYS' FEES AND PROTECTIVE
ADVANCES, WHICH OBLIGATIONS INCLUDED ALL INDEBTEDNESS OF ORIGINAL MORTGAGOR
UNDER ORIGINAL MORTGAGOR'S GUARANTY DATED AUGUST 3, 1993 (TOGETHER WITH ANY
AMENDMENTS THERETO, AND RENEWALS AND REPLACEMENTS THEREOF, THE "GUARANTY"); AND
WHEREAS, SUCH GUARANTY GUARANTEED PAYMENT OF ALL OF THE INDEBTEDNESS
OF THE DELTA QUEEN STEAMBOAT CO. (FORMERLY KNOWN AS DQSC-2, INC.) ("BORROWER")
UNDER THAT CERTAIN CREDIT AGREEMENT BY AND AMONG BORROWER, AMERICAN CLASSIC
VOYAGES CO. (FORMERLY KNOWN AS THE DELTA QUEEN STEAMBOAT CO.) ("PARENT") AND
MORTGAGEE, FOR ITSELF AND AS AGENT FOR THE LENDERS, (THE "ORIGINAL CREDIT
AGREEMENT") DATED AS OF AUGUST 3, 1993, WHICH ORIGINAL CREDIT AGREEMENT HAS
BEEN AMENDED SEVERAL TIMES, INCLUDING UNDER THE FIRST AMENDED AND RESTATED
CREDIT AGREEMENT DATED AS OF MARCH 31, 1995, THE SECOND AMENDED AND RESTATED
CREDIT AGREEMENT DATED AS OF AUGUST 31, 1995, AND THE THIRD AMENDED AND
RESTATED CREDIT AGREEMENT DATED AS OF APRIL 22, 1996 (THE ORIGINAL CREDIT
AGREEMENT, AS NOW OR HEREAFTER AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE
MODIFIED FROM TIME TO TIME, THE "CREDIT AGREEMENT"); AND
WHEREAS, THE MORTGAGE HAS BEEN PREVIOUSLY AMENDED THREE TIMES, UNDER
AN AMENDMENT RECORDED ON APRIL 7, 1995 WITH THE EIGHTH COAST GUARD DISTRICT IN
PM BOOK 9504, INSTRUMENT 226; BY SECOND AMENDMENT RECORDED ON SEPTEMBER 7, 1995
WITH THE NATIONAL VESSEL DOCUMENTATION CENTER IN BOOK 96-05, INSTRUMENT 659,
AND BY THIRD AMENDMENT RECORDED ON MARCH 3, 1997 WITH THE NATIONAL VESSEL
DOCUMENTATION CENTER IN BOOK 97-17, INSTRUMENT 210;
WHEREAS, PURSUANT TO MERGER, ORIGINAL MORTGAGOR WAS MERGED INTO GREAT
OCEAN CRUISE LINE, L.L.C., EFFECTIVE AS OF DECEMBER 31, 1996, AS EVIDENCED BY
THE CERTIFICATE OF MERGER FILED WITH THE DELAWARE SECRETARY OF STATE ON
DECEMBER 27, 1996, A COPY OF WHICH IS ATTACHED;
WHEREAS, IN CONNECTION WITH THE MERGER, MORTGAGOR HAS ASSUMED AS
ORIGINAL OBLIGOR, ON A JOINT AND SEVERAL AND SOLIDARY BASIS, ALL OF THE
OBLIGATIONS OF ORIGINAL MORTGAGOR UNDER THE GUARANTY, THE MORTGAGE AND THE
OTHER DOCUMENTS EXECUTED IN CONNECTION WITH THE CREDIT AGREEMENT TO WHICH
ORIGINAL MORTGAGOR IS A PARTY ("OTHER MORTGAGOR DOCUMENTS"), IN ACCORDANCE WITH
THE AMENDMENT NUMBER 2 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT, AND THAT
CERTAIN MASTER ASSUMPTION AGREEMENT AND FOURTH MASTER AMENDMENT TO COLLATERAL
DOCUMENTS BY AND AMONG GREAT RIVER CRUISE LINE, L.L.C., BORROWER AND CERTAIN
OTHER PARTIES OF EVEN DATE HEREWITH (THE "ASSUMPTION");
WHEREAS, MORTGAGOR WISHES TO CONFIRM THAT THE OBLIGATIONS SECURED BY
THE MORTGAGE INCLUDE ALL OBLIGATIONS ASSUMED BY MORTGAGOR UNDER THE ASSUMPTION,
INCLUDING ALL OBLIGATIONS GUARANTEED BY ORIGINAL MORTGAGOR UNDER THE GUARANTY,
WHICH GUARANTEED OBLIGATIONS INCLUDE, WITHOUT LIMITATION, ALL OF THE
INDEBTEDNESS OF BORROWER UNDER THE CREDIT AGREEMENT, UP TO A MAXIMUM SECURED
PRINCIPAL AMOUNT OF $25,000,000.00, TOGETHER WITH INTEREST, COSTS, ATTORNEYS'
FEES AND PROTECTIVE ADVANCES;
NOW THEREFORE, MORTGAGOR HEREBY ACKNOWLEDGES AND CONFIRMS THAT IT HAS
ASSUMED AND SHALL BE FULLY LIABLE ON A JOINT AND SEVERAL OR SOLIDARY BASIS FOR
ALL OBLIGATIONS OF ORIGINAL MORTGAGOR UNDER THE MORTGAGE, THE GUARANTY AND THE
OTHER MORTGAGOR DOCUMENTS, AND THAT THE "GUARANTEED OBLIGATIONS" WHICH ARE
SECURED BY THE GUARANTY, AND WHICH COMPRISE THE "OBLIGATIONS" SECURED BY THE
MORTGAGE, ARE FULLY GUARANTEED BY MORTGAGOR PURSUANT TO ITS ASSUMPTION OF THE
GUARANTY, AND WERE INTENDED TO INCLUDE, AND DO NOW AND SHALL HEREAFTER INCLUDE,
ANY AND ALL OBLIGATIONS OF BORROWER UNDER THE CREDIT AGREEMENT (UP TO THE
MAXIMUM PRINCIPAL LIMITS PROVIDED HEREIN), AS THE SAME CREDIT AGREEMENT IS
AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME,
WHETHER NOW OR AT ANY TIME IN THE FUTURE, INCLUDING ANY AMENDMENTS TO THE
CREDIT AGREEMENT THAT CHANGE THE AMOUNT OF THE CREDIT FACILITY THEREUNDER,
CHANGE THE INTEREST RATE, CHANGE THE MATURITY DATES, OR THAT EFFECT OTHER
CHANGES OF WHATEVER NATURE AND KIND WHATSOEVER. IN ACCORDANCE WITH THE
FOREGOING, AND WITHOUT LIMITING THE FOREGOING, MORTGAGOR CONFIRMS AND
ACKNOWLEDGES THAT THE "GUARANTEED OBLIGATIONS" SECURED BY THE GUARANTY, AND
CONSTITUTING THE "OBLIGATIONS" SECURED BY THE MORTGAGE AND ASSUMED BY
MORTGAGOR, WERE INTENDED TO INCLUDE, AND DO NOW AND SHALL HEREAFTER INCLUDE,
ANY AND ALL OBLIGATIONS, WHETHER FOR PRINCIPAL, INTEREST, FEES AND OTHER
AMOUNTS, THAT MAY NOW OR HEREAFTER BE DUE FROM BORROWER IN CONNECTION WITH THE
CREDIT AGREEMENT, AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM
TIME TO TIME, ALL UP TO A MAXIMUM SECURED PRINCIPAL AMOUNT OF $25,000,000.00,
TOGETHER WITH INTEREST, COSTS, ATTORNEYS' FEES AND
<PAGE> 4
PREFERRED SHIP MORTGAGE
PAGE 3
PROTECTIVE ADVANCES. MORTGAGOR HEREBY CONFIRMS THAT THE MAXIMUM PRINCIPAL
OBLIGATIONS SECURED BY THE MORTGAGE, WHETHER DIRECT OR CONTINGENT, EXCLUSIVE OF
INTEREST, EXPENSES AND FEES, PURSUANT TO 46 U.S.C.A '31321 (B) (3) AND 46 CFR
'67.235 (A) (2) (III) IS $25,000,000.00.
IN RECOGNITION OF THE MERGER, ALL REFERENCES IN THE MORTGAGE TO
"MORTGAGOR" SHALL BE AMENDED TO REFER TO GREAT OCEAN CRUISE LINE, L.L.C.
IT IS THE INTENTION OF MORTGAGOR THAT ALL ADVANCES UNDER THE CREDIT
AGREEMENT, TOGETHER WITH ANY AND ALL OTHER "OBLIGATIONS" AS DESCRIBED IN THE
ORIGINAL MORTGAGE AND ASSUMED AND CONFIRMED HEREIN AND THE ASSUMPTION, ARE
SECURED UNDER THE MORTGAGE WITH RETROACTIVE PRIORITY TO THE DATE OF THE
ORIGINAL MORTGAGE, IN CONFORMANCE WITH THE PROVISIONS OF APPLICABLE LAW, UP TO
A MAXIMUM PRINCIPAL SECURED AMOUNT OF $25,000,000.00, TOGETHER WITH INTEREST,
COSTS, ATTORNEYS' FEES AND PROTECTIVE ADVANCES. NOTHING HEREIN SHALL
CONSTITUTE A NOVATION, RELEASE, TERMINATION OR REISSUANCE OF THE MORTGAGE, OR A
NOVATION OF THE INDEBTEDNESS EVIDENCED BY THE CREDIT AGREEMENT. TERMS NOT
OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANING PROVIDED IN THE ORIGINAL
MORTGAGE. EXCEPT AS MODIFIED HEREBY AND BY THE PRIOR AMENDMENTS, THE ORIGINAL
MORTGAGE SHALL REMAIN IN FULL FORCE AND EFFECT. THIS ASSUMPTION HAS BEEN
EXECUTED AND DELIVERED TO MORTGAGEE IN TRUST, AND IS HELD BY MORTGAGEE IN
TRUST, PURSUANT TO THAT CERTAIN TRUST INDENTURE BY AND AMONG ORIGINAL
MORTGAGOR, MORTGAGEE AND THE ORIGINAL LENDERS, DATED AS OF AUGUST 3, 1993, AS
THE SAME MAY BE AMENDED FROM TIME TO TIME, INCLUDING PURSUANT TO THE SECOND
AMENDMENT TO TRUST INDENTURE DATED OF EVEN DATE HEREWITH.
MORTGAGOR HEREBY INSTRUCTS THE NATIONAL VESSEL DOCUMENTATION CENTER TO
MAKE NOTE OF THIS ASSUMPTION IN THE ITS RECORDS WITH RESPECT TO THE VESSEL AND
THE ORIGINAL MORTGAGE AND THE PRIOR AMENDMENTS THERETO, AND TO RECORD THIS
ASSUMPTION TO SERVE AS OCCASION MAY REQUIRE.
THUS DONE AND SIGNED, on the day, month and year first written above, in the
presence of the undersigned competent witnesses, who hereunto sign their names
with Mortgagor after reading of the whole.
WITNESSES: MORTGAGOR/ASSUMING PARTY:
GREAT OCEAN CRUISE LINE, L.L.C.
X /s/ Pam Stringer
---------------------------- By: The Delta Queen Steamboat Co.,
a Delaware corporation, a
managing member
X /s/ Sally Jordan
---------------------------- /s/ Jordan B. Allen
------------------------------
By: Jordan B. Allen,
Senior Vice President
By: DQSB II, Inc., a Delaware
corporation, a managing member
/s/ Jordan B. Allen
By: Jordan B. Allen,
Senior Vice President
ORIGINAL MORTGAGOR:
GREAT OCEAN CRUISE LINE, INC.
\s\ Jordan B. Allen
----------------------------------
By: Jordan B. Allen,
Senior Vice President
MORTGAGEE:
THE CHASE MANHATTAN BANK, formerly
known as Chemical Bank, Agent on
behalf of the Lenders to the Credit
Agreement pursuant to Trust Indenture
\s\ Lisa D. Benitez
------------------------------------
By: Lisa D. Benitez
<PAGE> 5
PREFERRED SHIP MORTGAGE
PAGE 4
ACKNOWLEDGEMENT
STATE OF ILLINOIS
COUNTY OF COOK
BEFORE ME, the undersigned Notary Public, personally came and appeared Jordan
B. Allen, the duly authorized Senior Vice President and representative of The
Delta Queen Steamboat Co. and DQSB II, Inc., the managing members of Great
Ocean Cruise Line, L.L.C., as duly authorized representative of Great Ocean
Cruise Line, L.L.C. who declared that he is the duly authorized representative
of Great Ocean Cruise Line, L.L.C. and its aforementioned managing members,
and that he signed the above instrument on the authorization of articles of
organization of Great Ocean Cruise Line, L.L.C. and the board of directors of
such managing members and that the same is the free and voluntary act and deed
of said Great Ocean Cruise Line, L.L.C and said members, and of himself in his
capacity as representative thereof, for the uses and purposes therein
expressed.
/s/ Jordan B. Allen
- ----------------------------
Name: Jordan B. Allen
SWORN TO AND SUBSCRIBED BEFORE ME
on the 26th day of March, 1997.
/s/ Theresa H. Reed-Adams
- ------------------------------
NOTARY PUBLIC
My commission expires: 11/22/98
<PAGE> 6
PREFERRED SHIP MORTGAGE
PAGE 5
ACKNOWLEDGEMENT
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned Notary Public, personally came and appeared Lisa D.
Benitez, the duly authorized Vice President and representative of The Chase
Manhattan Bank, formerly known as Chemical Bank, who declared that she is the
duly authorized representative of The Chase Manhattan Bank, and that she signed
the above instrument on the authorization of such corporation's board of
directors and that the same is the free and voluntary act and deed of said
corporation, and of himself in his capacity as representative thereof, for the
uses and purposes therein expressed.
/s/ Lisa D. Benitez
- ----------------------------
Name:
SWORN TO AND SUBSCRIBED BEFORE ME
on the 27th day of March, 1997.
/s/ H. Scott Kenyon
- ------------------------------
NOTARY PUBLIC
My commission expires: 8/9/97
<PAGE> 1
EXHIBIT 4.(ii)(a)(34)
ASSUMPTION OF PREFERRED SHIP MORTGAGE
ON 100.000% OF THE DELTA QUEEN
OFFICIAL NO. 225875
EXECUTED BY
GREAT RIVER CRUISE LINE, L.L.C.
(T.I.N. 72-1353488)
IN FAVOR OF
THE CHASE MANHATTAN BANK,
FORMERLY KNOWN AS
CHEMICAL BANK, AS TRUSTEE AND AGENT ("MORTGAGEE")
MORTGAGEE'S PERCENTAGE OF INTEREST IN MORTGAGE: 100.000%
ON THE 26TH DAY OF MARCH , 1997
FOR THE PRINCIPAL SUM OF $25,000,000.00, PLUS INTEREST,
EXPENSES, FEES AND PROTECTIVE ADVANCES
GROSS TONNAGE: 3360
NET TONNAGE: 1160
YEAR BUILT: 1926
LOCATION OF MORTGAGED VESSEL: NEW ORLEANS, LOUISIANA
HAILING PORT OF MORTGAGED VESSEL: NEW ORLEANS, LOUISIANA
ORIGINAL MORTGAGOR: GREAT RIVER CRUISE LINE, INC.
ASSUMING PARTY: GREAT RIVER CRUISE LINE, L.L.C.
<PAGE> 2
ASSUMPTION OF PREFERRED SHIP MORTGAGE
================================================================================
INFORMATION REQUIRED UNDER 46 CFR '67.239:
ROBIN ST. WHARF
1380 PORT OF NEW ORLEANS PLACE
NEW ORLEANS, LA 70130-1890
ASSUMING PARTY: GREAT OCEAN CRUISE LINE, L.L.C.
ROBIN ST. WHARF
1380 PORT OF NEW ORLEANS PLACE
NEW ORLEANS, LA 70130-1890
TRUSTEE: THE CHASE MANHATTAN BANK, FORMERLY KNOWN
AS CHEMICAL BANK, AS AGENT AND
TRUSTEE FOR THE BENEFIT OF THE LENDERS
(TIN 13-4994650)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
Date of Assumption: March, 1997
================================================================================
Principal obligations secured, direct or contingent,
exclusive of interest, expenses and fees, pursuant to
46 U.S.C.A '31321 (b) (3) and 46 CFR '67.235 (a) (2) (iii): $25,000,000.00
Description of Vessel:
Name: Delta Queen; Official Number: 225875; Gross Tonnage: 3360;
Net Tonnage: 1160; Year Built: 1926; Hailing Port: New Orleans,
Louisiana; Grantor's Percentage of Interest: 100.00%. Location of
Vessel: New Orleans, Louisiana.
================================================================================
ASSUMPTION OF PREFERRED SHIP MORTGAGE
ASSUMPTION OF PREFERRED SHIP MORTGAGE MADE AND ENTERED INTO BY AND BETWEEN THE
ABOVE NAMED MORTGAGOR IN FAVOR OF THE ABOVE-NAMED MORTGAGEE, ENCUMBERING THE
VESSEL DESCRIBED ABOVE.
BE IT KNOWN, THAT ON THIS 26TH DAY OF MARCH, 1997;
IN THE PRESENCE OF THE WITNESSES HEREINAFTER NAMED AND UNDERSIGNED,
PERSONALLY CAME AND APPEARED:
GREAT RIVER CRUISE LINE, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("MORTGAGOR"), WHOSE LOUISIANA MAILING ADDRESS IS ROBIN STREET
WHARF,1380 PORT OF NEW ORLEANS PLACE, NEW ORLEANS, LA 70130, WHOSE
TAXPAYER IDENTIFICATION NUMBER IS 72-1353488, SUCCESSOR BY MERGER TO
GREAT RIVER CRUISE LINE, INC., A DELAWARE CORPORATION, AS EVIDENCED BY
CERTIFICATE OF MERGER FILED WITH THE DELAWARE SECRETARY OF STATE ON
DECEMBER 27, 1996, BUT EFFECTIVE AS OF DECEMBER 31, 1996, REPRESENTED
HEREIN BY AND THROUGH THE DELTA QUEEN STEAMBOAT CO., A DELAWARE
CORPORATION, A MANAGING MEMBER, ITSELF APPEARING THROUGH JORDAN B.
ALLEN, ITS SENIOR VICE PRESIDENT AND DULY AUTHORIZED REPRESENTATIVE
PURSUANT TO A RESOLUTION OF ITS BOARD OF DIRECTORS, A CERTIFIED COPY OF
WHICH IS ATTACHED HERETO, AND DQSB II, INC., A DELAWARE CORPORATION, A
MANAGING MEMBER, ITSELF APPEARING THROUGH JORDAN B. ALLEN, ITS SENIOR
VICE PRESIDENT AND DULY AUTHORIZED REPRESENTATIVE PURSUANT TO A
RESOLUTION OF ITS BOARD OF DIRECTORS, A CERTIFIED COPY OF WHICH IS
ATTACHED HERETO; WHICH MANAGING MEMBERS ARE AUTHORIZED UNDER THE TERMS
OF MORTGAGOR'S OPERATING AGREEMENT AND A UNANIMOUS CONSENT RESOLUTION OF
ITS MEMBERS, A CERTIFIED COPY OF WHICH IS ATTACHED HERETO;
GREAT RIVER CRUISE LINE, INC., WHOSE LEGAL SUCCESSOR BY MERGER IS GREAT
RIVER CRUISE LINE, L.L.C., APPEARING HEREIN THROUGH ITS DULY AUTHORIZED
REPRESENTATIVE ("ORIGINAL MORTGAGOR");
THE CHASE MANHATTAN BANK, A BANK ORGANIZED UNDER THE LAWS OF THE STATE
OF NEW YORK,
<PAGE> 3
PREFERRED SHIP MORTGAGE
PAGE 2
FORMERLY KNOWN AS CHEMICAL BANK, IN ITS CAPACITY AS AGENT AND TRUSTEE
FOR THE LENDERS UNDER THE TRUST INDENTURE ("MORTGAGEE");
WHEREAS, GREAT RIVER CRUISE LINE, INC. ("ORIGINAL MORTGAGOR") GRANTED
THAT CERTAIN PREFERRED SHIP MORTGAGE, DATED AUGUST 3, 1993 (THE "ORIGINAL
MORTGAGE", TOGETHER WITH ANY AMENDMENTS THERETO, INCLUDING THIS ASSUMPTION, THE
"MORTGAGE"), WHICH ORIGINAL MORTGAGE WAS RECORDED WITH THE EIGHT COAST GUARD
DISTRICT ON AUGUST 16, 1993 AT 9:25 A.M. IN PM BOOK 245, INSTR. 65; AND
WHEREAS, THE ORIGINAL MORTGAGE WAS GRANTED TO SECURE PAYMENT OF THE
OBLIGATIONS (AS DEFINED THEREIN), UP TO A MAXIMUM SECURED PRINCIPAL AMOUNT SET
FORTH THEREIN, TOGETHER WITH INTEREST, COSTS, ATTORNEYS' FEES AND PROTECTIVE
ADVANCES, WHICH OBLIGATIONS INCLUDED ALL INDEBTEDNESS OF ORIGINAL MORTGAGOR
UNDER ORIGINAL MORTGAGOR'S GUARANTY DATED AUGUST 3, 1993 (TOGETHER WITH ANY
AMENDMENTS THERETO, AND RENEWALS AND REPLACEMENTS THEREOF, THE "GUARANTY"); AND
WHEREAS, SUCH GUARANTY GUARANTEED PAYMENT OF ALL OF THE INDEBTEDNESS
OF THE DELTA QUEEN STEAMBOAT CO. (FORMERLY KNOWN AS DQSC-2, INC.) ("BORROWER")
UNDER THAT CERTAIN CREDIT AGREEMENT BY AND AMONG BORROWER, AMERICAN CLASSIC
VOYAGES CO. (FORMERLY KNOWN AS THE DELTA QUEEN STEAMBOAT CO.) ("PARENT") AND
MORTGAGEE, FOR ITSELF AND AS AGENT FOR THE LENDERS, (THE "ORIGINAL CREDIT
AGREEMENT") DATED AS OF AUGUST 3, 1993, WHICH ORIGINAL CREDIT AGREEMENT HAS
BEEN AMENDED SEVERAL TIMES, INCLUDING UNDER THE FIRST AMENDED AND RESTATED
CREDIT AGREEMENT DATED AS OF MARCH 31, 1995, THE SECOND AMENDED AND RESTATED
CREDIT AGREEMENT DATED AS OF AUGUST 31, 1995, AND THE THIRD AMENDED AND
RESTATED CREDIT AGREEMENT DATED AS OF APRIL 22, 1996 (THE ORIGINAL CREDIT
AGREEMENT, AS NOW OR HEREAFTER AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE
MODIFIED FROM TIME TO TIME, THE "CREDIT AGREEMENT"); AND
WHEREAS, THE MORTGAGE HAS BEEN PREVIOUSLY AMENDED THREE TIMES, UNDER
AN AMENDMENT RECORDED ON APRIL 7, 1995 WITH THE EIGHTH COAST GUARD DISTRICT IN
PM BOOK 9504, INSTRUMENT 227; BY SECOND AMENDMENT RECORDED ON SEPTEMBER 7, 1995
WITH THE NATIONAL VESSEL DOCUMENTATION CENTER IN BOOK 96-03, INSTRUMENT 673,
AND BY THIRD AMENDMENT RECORDED ON MARCH 3, 1997 WITH THE NATIONAL VESSEL
DOCUMENTATION CENTER IN BOOK 97-17, INSTRUMENT 209;
WHEREAS, PURSUANT TO MERGER, ORIGINAL MORTGAGOR WAS MERGED INTO GREAT
RIVER CRUISE LINE, L.L.C., EFFECTIVE AS OF DECEMBER 31, 1996, AS EVIDENCED BY
THE CERTIFICATE OF MERGER FILED WITH THE DELAWARE SECRETARY OF STATE ON
DECEMBER 27, 1996, A COPY OF WHICH IS ATTACHED;
WHEREAS, IN CONNECTION WITH THE MERGER, MORTGAGOR HAS ASSUMED AS
ORIGINAL OBLIGOR, ON A JOINT AND SEVERAL AND SOLIDARY BASIS, ALL OF THE
OBLIGATIONS OF ORIGINAL MORTGAGOR UNDER THE GUARANTY, THE MORTGAGE AND THE
OTHER DOCUMENTS EXECUTED IN CONNECTION WITH THE CREDIT AGREEMENT TO WHICH
ORIGINAL MORTGAGOR IS A PARTY ("OTHER MORTGAGOR DOCUMENTS"), IN ACCORDANCE WITH
THE AMENDMENT NUMBER 2 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT, AND THAT
CERTAIN MASTER ASSUMPTION AGREEMENT AND FOURTH MASTER AMENDMENT TO COLLATERAL
DOCUMENTS BY AND AMONG GREAT OCEAN CRUISE LINE, L.L.C., BORROWER AND CERTAIN
OTHER PARTIES OF EVEN DATE HEREWITH (THE "ASSUMPTION");
WHEREAS, MORTGAGOR WISHES TO CONFIRM THAT THE OBLIGATIONS SECURED BY
THE MORTGAGE INCLUDE ALL OBLIGATIONS ASSUMED BY MORTGAGOR UNDER THE ASSUMPTION,
INCLUDING ALL OBLIGATIONS GUARANTEED BY ORIGINAL MORTGAGOR UNDER THE GUARANTY,
WHICH GUARANTEED OBLIGATIONS INCLUDE, WITHOUT LIMITATION, ALL OF THE
INDEBTEDNESS OF BORROWER UNDER THE CREDIT AGREEMENT, UP TO A MAXIMUM SECURED
PRINCIPAL AMOUNT OF $25,000,000.00, TOGETHER WITH INTEREST, COSTS, ATTORNEYS'
FEES AND PROTECTIVE ADVANCES;
NOW THEREFORE, MORTGAGOR HEREBY ACKNOWLEDGES AND CONFIRMS THAT IT HAS
ASSUMED AND SHALL BE FULLY LIABLE ON A JOINT AND SEVERAL OR SOLIDARY BASIS FOR
ALL OBLIGATIONS OF ORIGINAL MORTGAGOR UNDER THE MORTGAGE, THE GUARANTY AND THE
OTHER MORTGAGOR DOCUMENTS, AND THAT THE "GUARANTEED OBLIGATIONS" WHICH ARE
SECURED BY THE GUARANTY, AND WHICH COMPRISE THE "OBLIGATIONS" SECURED BY THE
MORTGAGE, ARE FULLY GUARANTEED BY MORTGAGOR PURSUANT TO ITS ASSUMPTION OF THE
GUARANTY, AND WERE INTENDED TO INCLUDE, AND DO NOW AND SHALL HEREAFTER INCLUDE,
ANY AND ALL OBLIGATIONS OF BORROWER UNDER THE CREDIT AGREEMENT (UP TO THE
MAXIMUM PRINCIPAL LIMITS PROVIDED HEREIN), AS THE SAME CREDIT AGREEMENT IS
AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME,
WHETHER NOW OR AT ANY TIME IN THE FUTURE, INCLUDING ANY AMENDMENTS TO THE
CREDIT AGREEMENT THAT CHANGE THE AMOUNT OF THE CREDIT FACILITY THEREUNDER,
CHANGE THE INTEREST RATE, CHANGE THE MATURITY DATES, OR THAT EFFECT OTHER
CHANGES OF WHATEVER NATURE AND KIND WHATSOEVER. IN ACCORDANCE WITH THE
FOREGOING, AND WITHOUT LIMITING THE FOREGOING, MORTGAGOR CONFIRMS AND
ACKNOWLEDGES THAT THE "GUARANTEED OBLIGATIONS" SECURED BY THE GUARANTY, AND
CONSTITUTING THE "OBLIGATIONS" SECURED BY THE MORTGAGE AND ASSUMED BY
MORTGAGOR, WERE INTENDED TO INCLUDE, AND DO NOW AND SHALL HEREAFTER INCLUDE,
ANY AND ALL OBLIGATIONS, WHETHER FOR PRINCIPAL, INTEREST, FEES AND OTHER
AMOUNTS, THAT MAY NOW OR HEREAFTER BE DUE FROM BORROWER IN CONNECTION WITH THE
CREDIT AGREEMENT, AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM
TIME TO TIME, ALL UP TO A
<PAGE> 4
PREFERRED SHIP MORTGAGE
PAGE 3
MAXIMUM SECURED PRINCIPAL AMOUNT OF $25,000,000.00, TOGETHER WITH INTEREST,
COSTS, ATTORNEYS' FEES AND PROTECTIVE ADVANCES. MORTGAGOR HEREBY CONFIRMS THAT
THE MAXIMUM PRINCIPAL OBLIGATIONS SECURED BY THE MORTGAGE, WHETHER DIRECT OR
CONTINGENT, EXCLUSIVE OF INTEREST, EXPENSES AND FEES, PURSUANT TO 46 U.S.C.A
'31321 (B) (3) AND 46 CFR '67.235 (A) (2) (III) IS $25,000,000.00.
IN RECOGNITION OF THE MERGER, ALL REFERENCES IN THE MORTGAGE TO
"MORTGAGOR" SHALL BE AMENDED TO REFER TO GREAT RIVER CRUISE LINE, L.L.C.
IT IS THE INTENTION OF MORTGAGOR THAT ALL ADVANCES UNDER THE CREDIT
AGREEMENT, TOGETHER WITH ANY AND ALL OTHER "OBLIGATIONS" AS DESCRIBED IN THE
ORIGINAL MORTGAGE AND ASSUMED AND CONFIRMED HEREIN AND THE ASSUMPTION, ARE
SECURED UNDER THE MORTGAGE WITH RETROACTIVE PRIORITY TO THE DATE OF THE
ORIGINAL MORTGAGE, IN CONFORMANCE WITH THE PROVISIONS OF APPLICABLE LAW, UP TO
A MAXIMUM PRINCIPAL SECURED AMOUNT OF $25,000,000.00, TOGETHER WITH INTEREST,
COSTS, ATTORNEYS' FEES AND PROTECTIVE ADVANCES. NOTHING HEREIN SHALL
CONSTITUTE A NOVATION, RELEASE, TERMINATION OR REISSUANCE OF THE MORTGAGE, OR A
NOVATION OF THE INDEBTEDNESS EVIDENCED BY THE CREDIT AGREEMENT. TERMS NOT
OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANING PROVIDED IN THE ORIGINAL
MORTGAGE. EXCEPT AS MODIFIED HEREBY AND BY THE PRIOR AMENDMENTS, THE ORIGINAL
MORTGAGE SHALL REMAIN IN FULL FORCE AND EFFECT. THIS ASSUMPTION HAS BEEN
EXECUTED AND DELIVERED TO MORTGAGEE IN TRUST, AND IS HELD BY MORTGAGEE IN
TRUST, PURSUANT TO THAT CERTAIN TRUST INDENTURE BY AND AMONG ORIGINAL
MORTGAGOR, MORTGAGEE AND THE ORIGINAL LENDERS, DATED AS OF AUGUST 3, 1993, AS
THE SAME MAY BE AMENDED FROM TIME TO TIME, INCLUDING PURSUANT TO THE SECOND
AMENDMENT TO TRUST INDENTURE DATED OF EVEN DATE HEREWITH.
MORTGAGOR HEREBY INSTRUCTS THE NATIONAL VESSEL DOCUMENTATION CENTER TO
MAKE NOTE OF THIS ASSUMPTION IN THE ITS RECORDS WITH RESPECT TO THE VESSEL AND
THE ORIGINAL MORTGAGE AND THE PRIOR AMENDMENTS THERETO, AND TO RECORD THIS
ASSUMPTION TO SERVE AS OCCASION MAY REQUIRE.
THUS DONE AND SIGNED, on the day, month and year first written above, in the
presence of the undersigned competent witnesses, who hereunto sign their names
with Mortgagor after reading of the whole.
WITNESSES: MORTGAGOR/ASSUMING PARTY:
GREAT RIVER CRUISE LINE, L.L.C.
X /s/ Pam Stringer
---------------------------- By: The Delta Queen Steamboat Co.,
a Delaware corporation, a
managing member
X /s/ Sally Jordan
---------------------------- /s/ Jordan B. Allen
------------------------------
By: Jordan B. Allen,
Senior Vice President
By: DQSB II, Inc., a Delaware
corporation, a managing member
/s/ Jordan B. Allen
------------------------------
By: Jordan B. Allen,
Senior Vice President
ORIGINAL MORTGAGOR:
GREAT RIVER CRUISE LINE, INC.
/s/ Jordan B. Allen
----------------------------------
By: Jordan B. Allen,
Senior Vice President
MORTGAGEE:
THE CHASE MANHATTAN BANK, formerly
known as Chemical Bank, Agent on
behalf of the Lenders to the Credit
Agreement pursuant to Trust Indenture
/s/ Lisa D. Benitez
------------------------------------
By: Lisa D. Benitez
<PAGE> 5
PREFERRED SHIP MORTGAGE
PAGE 4
ACKNOWLEDGEMENT
STATE OF ILLINOIS
COUNTY OF COOK
BEFORE ME, the undersigned Notary Public, personally came and appeared Jordan
B. Allen, the duly authorized Senior Vice President and representative of The
Delta Queen Steamboat Co. and DQSB II, Inc., the managing members of Great
River Cruise Line, L.L.C., as duly authorized representative of Great River
Cruise Line, L.L.C. who declared that he is the duly authorized representative
of Great River Cruise Line, L.L.C. and its aforementioned managing members,
and that he signed the above instrument on the authorization of articles of
organization of Great River Cruise Line, L.L.C. and the board of directors of
such managing members and that the same is the free and voluntary act and deed
of said Great River Cruise Line, L.L.C and said members, and of himself in his
capacity as representative thereof, for the uses and purposes therein
expressed.
/s/ Jordan B. Allen
- ----------------------------
Name: Jordan B. Allen
SWORN TO AND SUBSCRIBED BEFORE ME
on the 26th day of March, 1997.
/s/ Theresa H. Reed-Adams
- ------------------------------
NOTARY PUBLIC
My commission expires: 11/22/98
<PAGE> 6
PREFERRED SHIP MORTGAGE
PAGE 5
ACKNOWLEDGEMENT
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned Notary Public, personally came and appeared Lisa D.
Benitez, the duly authorized Vice President and representative of The Chase
Manhattan Bank, formerly known as Chemical Bank, who declared that she is the
duly authorized representative of The Chase Manhattan Bank, and that she signed
the above instrument on the authorization of such corporation's board of
directors and that the same is the free and voluntary act and deed of said
corporation, and of himself in his capacity as representative thereof, for the
uses and purposes therein expressed.
/s/ Lisa D. Benitez
- ----------------------------
Name:
SWORN TO AND SUBSCRIBED BEFORE ME
on the 27th day of March, 1997.
/s/ H. Scott Kenyon
- ------------------------------
NOTARY PUBLIC
My commission expires: 8/9/97
<PAGE> 1
EXHIBIT 4.(ii)(a)(35)
THIRD AMENDED AND RESTATED REVOLVING LOAN NOTE
$7,500,000.00 March 26, 1997
FOR VALUE RECEIVED, the undersigned, THE DELTA QUEEN STEAMBOAT CO., a
Delaware corporation (the "Borrower") HEREBY UNCONDITIONALLY PROMISES TO PAY to
the order of HIBERNIA NATIONAL BANK (the "Lender"), the principal sum of SEVEN
MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($7,500,000.00), or, if less,
the aggregate unpaid amount of all of the Revolving Loans made by the Lender
pursuant to the "Credit Agreement" (as hereinafter defined). Capitalized terms
used herein and not otherwise defined herein are used as defined in the Credit
Agreement.
The principal amount of the indebtedness evidenced hereby shall be
payable in the amounts and on the dates specified in the Credit Agreement and,
if not sooner paid in full, on the Termination Date. Borrower further promises
to pay interest on the unpaid principal amount of each Revolving Loan from the
date of such Revolving Loan until the principal amount thereof is paid in full,
at such interest rates, and payable at such times, as are specified in the
Credit Agreement.
All payments of principal and interest in respect of this Note shall
be made payable to the Agent as provided in the Credit Agreement in lawful money
of the United States of America in same day funds for the Lender's account at
The Chase Manhattan Bank (formerly known as Chemical Bank), 270 Park Avenue, New
York, New York 10017, Re: Payment for Delta Queen Steamboat Co. Loan, or at
such other place as shall be designated in writing by the Agent for such purpose
in accordance with the terms of the Credit Agreement.
All Revolving Loans made by the Lender to Borrower, the respective
Interest Periods thereof, in the case of Eurodollar Rate Loans, and all
repayments of the principal of all Revolving Loans shall be recorded by the
Lender and, prior to any transfer thereof, endorsed by the Lender on the
schedule attached hereto and made a part hereof; provided, that the failure of
the Lender to make any such recordation or endorsement shall not affect the
obligations of Borrower hereunder or under the Credit Agreement.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, that certain Third Amended and Restated Credit Agreement dated as
of April 22, 1996, as amended (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Borrower, American Classic Voyages Co., the Agent and the Lenders. The
Credit Agreement, among other things, (i) provides for the making of Revolving
Loans by the Lender to Borrower from time to time and (ii) contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.
<PAGE> 2
Demand, presentment, protest and notice of nonpayment and protest are
hereby waived by Borrower.
Whenever in this Note reference is made to the Agent, the Lender or
Borrower, such reference shall be deemed to include, as applicable, a reference
to their respective successors and assigns. The provisions of this Note shall
be binding upon and shall inure to the benefit of said successors and assigns.
Borrower's successors and assigns shall include, without limitation, a receiver,
trustee or debtor in possession of or for Borrower.
THIS NOTE SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE
PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THE DELTA QUEEN STEAMBOAT CO.
By: \s\ Jordan B. Allen
--------------------------------
Title: Senior Vice President
<PAGE> 3
DELTA QUEEN STEAMBOAT CO. NOTE SCHEDULE
AMOUNT OF UNPAID
AMOUNT OF TYPE OF INTEREST PRINCIPAL PRINCIPAL NOTATION
DATE LOAN LOAN PERIOD REPAID BALANCE MADE BY
- ------------------------------------------------------------------------------
<PAGE> 1
EXHIBIT 4.(ii)(a)(36)
THIRD AMENDED AND RESTATED REVOLVING LOAN NOTE
$7,500,000.00 March 26, 1997
FOR VALUE RECEIVED, the undersigned, THE DELTA QUEEN STEAMBOAT CO., a
Delaware corporation (the "Borrower") HEREBY UNCONDITIONALLY PROMISES TO PAY to
the order of THE CHASE MANHATTAN BANK (the "Lender"), the principal sum of SEVEN
MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($7,500,000.00), or, if less,
the aggregate unpaid amount of all of the Revolving Loans made by the Lender
pursuant to the "Credit Agreement" (as hereinafter defined). Capitalized terms
used herein and not otherwise defined herein are used as defined in the Credit
Agreement.
The principal amount of the indebtedness evidenced hereby shall be
payable in the amounts and on the dates specified in the Credit Agreement and,
if not sooner paid in full, on the Termination Date. Borrower further promises
to pay interest on the unpaid principal amount of each Revolving Loan from the
date of such Revolving Loan until the principal amount thereof is paid in full,
at such interest rates, and payable at such times, as are specified in the
Credit Agreement.
All payments of principal and interest in respect of this Note shall
be made payable to the Agent as provided in the Credit Agreement in lawful money
of the United States of America in same day funds for the Lender's account at
The Chase Manhattan Bank (formerly known as Chemical Bank), 270 Park Avenue, New
York, New York 10017, Re: Payment for Delta Queen Steamboat Co. Loan, or at
such other place as shall be designated in writing by the Agent for such purpose
in accordance with the terms of the Credit Agreement.
All Revolving Loans made by the Lender to Borrower, the respective
Interest Periods thereof, in the case of Eurodollar Rate Loans, and all
repayments of the principal of all Revolving Loans shall be recorded by the
Lender and, prior to any transfer thereof, endorsed by the Lender on the
schedule attached hereto and made a part hereof; provided, that the failure of
the Lender to make any such recordation or endorsement shall not affect the
obligations of Borrower hereunder or under the Credit Agreement.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, that certain Third Amended and Restated Credit Agreement dated as
of April 22, 1996, as amended (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Borrower, American Classic Voyages Co., the Agent and the Lenders. The
Credit Agreement, among other things, (i) provides for the making of Revolving
Loans by the Lender to Borrower from time to time and (ii) contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.
<PAGE> 2
Demand, presentment, protest and notice of nonpayment and protest are
hereby waived by Borrower.
Whenever in this Note reference is made to the Agent, the Lender or
Borrower, such reference shall be deemed to include, as applicable, a reference
to their respective successors and assigns. The provisions of this Note shall
be binding upon and shall inure to the benefit of said successors and assigns.
Borrower's successors and assigns shall include, without limitation, a receiver,
trustee or debtor in possession of or for Borrower.
THIS NOTE SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE
PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THE DELTA QUEEN STEAMBOAT CO.
By:\s\ Jordan B. Allen
--------------------------
Title: Senior Vice President
<PAGE> 3
DELTA QUEEN STEAMBOAT CO. NOTE SCHEDULE
AMOUNT OF UNPAID
AMOUNT OF TYPE OF INTEREST PRINCIPAL PRINCIPAL NOTATION
DATE LOAN LOAN PERIOD REPAID BALANCE MADE BY
- ------------------------------------------------------------------------------
<PAGE> 1
EXHIBIT 4.(ii)(a)(37)
ADDENDUM
TO
STOCK PLEDGE AGREEMENT
This Addendum is made as of March 26, 1997 to the Stock Pledge
Agreement dated as of August 3, 1993, as amended, (the "PLEDGE AGREEMENT"), by
and between THE DELTA QUEEN STEAMBOAT CO. (formerly known as DQSC-2, Inc.), a
Delaware corporation (the "COMPANY") and THE CHASE MANHATTAN BANK (formerly
known as Chemical Bank), as Agent for itself and the other Lenders under the
Credit Agreement referred to below.
RECITALS: The Company, American Classic Voyages Co., certain Lenders
and the Agent are parties to the Third Amended and Restated Credit Agreement
dated as of April 22, 1996, as amended through the date hereof (the "CREDIT
AGREEMENT"; capitalized terms used herein without definition shall have the
respective meanings assigned thereto in the Credit Agreement or the Pledge
Agreement). It is a condition precedent to the effectiveness of Amendment
Number 2 to the Credit Agreement, of even date herewith, that the Company
execute and deliver to the Agent, for the benefit of the Lenders and the Agent,
this Addendum and all of the issued and outstanding shares of capital stock of
DQSB II, Inc. described on Annex A attached hereto, together with an undated
stock power executed by the Company in blank with respect to each stock
certificate so delivered.
ACCORDINGLY, the Company agrees with the Agent as follows:
1. Pledge of Stock. The shares of capital stock of DQSB II, Inc.
described on Annex A hereto and delivered to the Agent herewith (the "DQII
STOCK") shall constitute "Stock" and "Stock Collateral" as defined in the Pledge
Agreement as if such shares had originally been described on Annex A to the
Pledge Agreement, shall be subject to the pledge and security interest created
by, and all other terms, conditions and covenants contained in, the Pledge
Agreement, and shall secure the payment and performance of the Obligations as
provided in the Pledge Agreement.
2. Representations and Warranties. The representations and
warranties of the Company contained in Section 5 of the Pledge Agreement are as
of the date hereof, and at all times hereafter shall be, true and correct with
respect to the DQII Stock.
THE DELTA QUEEN STEAMBOAT CO.
By: /s/ Jordan B. Allen
----------------------------
Name: Jordan B. Allen
Title: Senior Vice President
<PAGE> 2
ANNEX A
TO
ADDENDUM
TO
STOCK PLEDGE AGREEMENT
Number
Subsidiary Class of Shares
- ------------------------------------------------------------------------
DQSB II, Inc. Common 1,000
<PAGE> 3
ACKNOWLEDGMENT
Dated as of March 26, 1997
The undersigned hereby acknowledges the pledge set forth in the
foregoing Addendum and agrees (i) to be bound by the provisions of Sections
4(a), 6 and 7 of the Stock Pledge Agreement and (ii) to cooperate fully and in
good faith with the Agent and the Company in carrying out such provisions.
DQSB II, INC.
By: /s/ Jordan B. Allen
--------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
<PAGE> 1
EXHIBIT 4.(ii)(a)(38)
LIMITED LIABILITY COMPANY PLEDGE AGREEMENT
THIS LIMITED LIABILITY COMPANY PLEDGE AGREEMENT ("AGREEMENT") is made
as of March 26, 1997 by THE DELTA QUEEN STEAMBOAT CO., a Delaware corporation
("PLEDGOR"), a member of Great River Cruise Line, L.L.C., a Delaware limited
liability company ("GRCL"), and a member of Great Ocean Cruise Line, L.L.C., a
Delaware limited liability company ("GOCL"), and The Chase Manhattan Bank, as
agent (the "AGENT"), for its benefit and the benefit of the Holders of Secured
Obligations (as such term is defined in the Credit Agreement referred to below).
Capitalized terms used herein and not herein defined shall have the same
meanings assigned to such terms in the Credit Agreement described below.
R E C I T A L S:
A. The Pledgor, certain financial institutions (such financial
institutions being herein referred to collectively as the "LENDERS"), and the
Agent as one of the Lenders and as the agent for the Lenders have entered into
the Third Amended and Restated Credit Agreement dated as of April 22, 1996, as
amended through the date hereof (as amended, restated, supplemented or modified
from time to time, the "CREDIT AGREEMENT"), pursuant to which the Lenders have
agreed, subject to certain conditions precedent, to make loans and other
financial accommodations to the Pledgor from time to time.
B. It is a condition precedent to the making of the loans to the
Pledgor under the Credit Agreement that this Agreement shall be executed and
delivered by the Pledgor to the Lender and that this Agreement shall be in full
force and effect.
C. The Pledgor desires to secure its "LIABILITIES" (as
hereinafter defined) to the Lender by the grant to the Lender of a first
priority security interest in the Pledged Collateral (as hereinafter defined).
ACCORDINGLY, for and in consideration of the foregoing and of any
financial accommodations or extensions of credit (including, without limitation,
any loan or advance by renewal, refinancing or extension of the agreements
described hereinabove or otherwise) heretofore, now or hereafter made to or for
the benefit of the Pledgor pursuant to the Credit Agreement or any other
agreement, instrument or document executed pursuant to or in connection
therewith, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Pledgor and the Agent hereby
agree as follows:
1. Pledge. The Pledgor hereby pledges, grants and assigns to
the Agent, for the benefit of the Agent and the Holders of Secured Obligations,
and grants to the Agent for the benefit of the Agent and the Holders of Secured
Obligations, a security interest in, the following (collectively, the "PLEDGED
COLLATERAL"):
<PAGE> 2
(a) The membership interest of Pledgor in GRCL and in GOCL now or at
any time or times hereafter owned by the Pledgor, and any certificates
representing such membership interest in GRCL or in GOCL (such membership
interests being identified on Exhibit A attached hereto and made a part
hereof), all of the right, title and interest of the Pledgor in, to and
under its respective percentage interest, shares or units as a member
including, without limitation, Pledgor's interest in (or allocation of) the
profits, losses, income, gains, deductions, credits or similar items of
GRCL and of GOCL and the right to receive distributions of GRCL's and
GOCL's cash, other property, assets, and all options and warrants for the
purchase of membership interests, whether now existing or hereafter
arising, whether arising under the terms of the Certificate of Formation,
the Amended and Restated Limited Liability Company Agreement or any of the
other organizational documents (such documents hereinafter collectively
referred to as the "OPERATING AGREEMENTS") of GRCL or of GOCL, or at law or
in equity, or otherwise and any and all of the proceeds thereof (all of
said membership interests, certificates, and warrants being hereinafter
collectively referred to as the "PLEDGED MEMBERSHIP INTEREST") herewith
delivered to the Agent accompanied by the certificates or other writings
evidencing the same, accompanied by duly executed instruments of transfer
or assignments in blank, all in form and substance satisfactory to the
Agent (such instruments being collectively referred to hereinafter as the
"POWERS") duly executed in blank, and all distributions, cash, instruments
and other property from time to time received, receivable or otherwise
distributed in respect of, or in exchange for, any or all of the Pledged
Membership Interest;
(b) Any additional membership interests in GRCL or GOCL from time to
time acquired by the Pledgor in any manner, and any certificates
representing such additional membership interests or any additional
percentage interests, shares, units, options or warrants of membership
interests in GRCL or in GOCL (any such additional interests shall
constitute part of the Pledged Membership Interest and the Agent is
irrevocably authorized to amend Exhibit A from time to time to reflect such
additional shares), and all options, warrants, distributions, cash,
instruments and other rights and options from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of such shares and will promptly thereafter deliver to the Lender, a
certificate duly executed by the Pledgor describing such percentage
interests, certificates, units, options or warrants and certifying that the
same have been duly pledged hereunder;
(c) The property and interests in property described in Section 3
below; and
(d) All proceeds of the foregoing.
2. Security for Liabilities. The Pledged Collateral secures the
prompt payment, performance and observance of (i) the Obligations and (ii) the
Pledgor's obligations and liabilities under this Agreement and each agreement,
document or instrument executed pursuant to or in connection with this Agreement
(all such
<PAGE> 3
obligations and liabilities of the Pledgor and the Borrower now or hereafter
existing being hereinafter referred to as the "LIABILITIES").
3. Pledged Collateral Adjustments. If, during the term of this
Agreement:
(a) Any reclassification, readjustment or other change is declared or
made in the capital structure of GRCL or of GOCL, or any option included
within the Pledged Collateral is exercised, or both, or
(b) Any subscription, warrants or any other rights or options shall
be issued in connection with the Pledged Collateral,
then all new, substituted and additional membership interests, certificates,
warrants, rights, options or other securities, issued by reason of any of the
foregoing, shall be immediately delivered to and held by the Agent under the
terms of this Agreement and shall constitute Pledged Collateral hereunder;
provided, however, that nothing contained in this Section 3 shall be deemed to
permit any distribution, issuance of additional membership interests, warrants,
rights or options, reclassification, readjustment or other change in the
capital structure of GRCL or of GOCL which is not expressly permitted in the
Credit Agreement.
4. Subsequent Changes Affecting Pledged Collateral. The Pledgor
represents and warrants that it has made its own arrangements for keeping itself
informed of changes or potential changes affecting the Pledged Collateral
(including, but not limited to, rights to convert, rights to subscribe, cash
distributions or other distributions, reorganization or other exchanges, tender
offers and voting rights), and the Pledgor agrees that neither the Agent nor any
of the Holders of Secured Obligations shall have any obligation to inform the
Pledgor of any such changes or potential changes or to take any action or omit
to take any action with respect thereto. The Agent may, after the occurrence of
an Event of Default, without notice and at its option, transfer or register the
Pledged Collateral or any part thereof into its or its nominee's name with or
without any indication that such Pledged Collateral is subject to the security
interest hereunder. In addition, the Agent may at any time exchange
certificates or instruments representing or evidencing Pledged Membership
Interests for certificates or instruments of smaller or larger denominations.
5. Representations and Warranties. The Pledgor represents and
warrants as follows:
(a) The Pledgor is the sole legal and beneficial owner of the
membership interests in GRCL and in GOCL pledged to the Agent pursuant to
this Agreement, free and clear of any Lien except for the security interest
created by this Agreement;
(b) This Agreement has been duly and validly authorized, executed and
delivered by Pledgor and constitutes the legal, valid and binding
obligation of the Pledgor enforceable against the Pledgor in accordance
with its terms except as enforcement may be limited by bankruptcy,
insolvency and other similar laws affecting the enforcement of creditors'
rights generally and by moratorium laws from time to time in effect and
general equitable principles;
<PAGE> 4
(c) Such Pledgor is the direct beneficial owner of the Pledged
Collateral hereby pledged by it;
(d) The Pledgor owns such Pledged Collateral free and clear of any
Lien, except for the pledge and security interest granted to the Agent and
the Holders of Secured Obligations hereunder;
(e) The Pledgor shall cause GRCL and GOCL to make a notation on
their respective records, which notation shall indicate the security
interest granted hereby, and such Pledgor agrees to execute and file
financing statements pursuant to the Uniform Commercial Code as the Agent
may request to perfect the security interest granted hereby, and such
Pledgor agrees to execute and deliver to GRCL and to GOCL a Pledge
Instruction in the form of Exhibit B hereto;
(f) The pledge of the Pledged Collateral by the Pledgor does not
violate (1) the Operating Agreements of GRCL or of GOCL or any of the other
organizational documents of GRCL or of GOCL; (2) the certificate of
incorporation or by-laws of the Pledgor; (3) any indenture, mortgage, loan
or credit agreement to which the Pledgor, GRCL or GOCL is a party or by
which any of their respective properties or assets may be bound; or (4) any
restriction on such transfer or encumbrance of such Pledged Collateral;
(g) Except as set forth in the Operating Agreements, there are no
restrictions upon the voting rights associated with, or upon the transfer
of, any of the Pledged Collateral;
(h) Except as set forth in the Operating Agreements, the Pledgor has
the right to vote, pledge, assign and grant a security interest in or
otherwise transfer such Pledged Collateral free of any Liens;
(i) No authorization, approval, or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
either (i) for the pledge of the Pledged Collateral pursuant to this
Agreement or for the execution, delivery or performance of this Agreement
by the Pledgor or (ii) for the exercise by the Agent of the voting or other
rights provided for in this Agreement or the remedies in respect of the
Pledged Collateral pursuant to this Agreement (except as may be required in
connection with such disposition by laws affecting the offering and sale of
securities generally);
(j) The pledge of the Pledged Collateral pursuant to this Agreement
creates a valid and perfected first priority security interest in the
Pledged Collateral, in favor of the Agent for the benefit of the Agent and
the Holders of Secured Obligations, securing the payment and performance of
the Liabilities;
(k) The pledge of the Pledge Collateral pursuant to this Agreement
constitutes a complete assignment of the Pledged Collateral pursuant to 6
Del. Code Ann. Section 18-702 (1996).
<PAGE> 5
6. Voting Rights and Other Powers. During the term of this
Agreement, and except as provided in this Section 6 below, the Pledgor shall
have (i) the right to vote the Pledged Membership Interest on all questions in a
manner not inconsistent with the terms of this Agreement, the Credit Agreement
and any other agreement, instrument or document executed pursuant thereto or in
connection therewith, and (ii) the right to be the member and manager of GRCL
and/or GOCL, and shall be entitled to exercise all managerial, election and
other rights relating to the Pledged Collateral. After the occurrence or during
the continuance of an Event of Default, the Agent or the Agent's nominee may, at
the Agent's or such nominee's option and following written notice ("ELECTION
NOTICE") from the Agent to the Pledgor (x) exercise, or direct such Pledgor as
to the exercise of (whereupon such Pledgor shall exercise as so directed), all
voting, consent, managerial, election and other membership and manager rights to
the Pledged Collateral of the Pledgor; such authorization shall constitute an
irrevocable voting proxy from the Pledgor to the Agent or, at the Agent's
option, to the Agent's nominee; and (y) exercise, or direct such Pledgor as to
the exercise of (whereupon the Pledgor shall exercise as so directed), any and
all rights of conversion, exchange, subscription or any other rights, privileges
or options pertaining to the Pledged Collateral of the Pledgor as if the Agent
were the absolute owner thereof, all without liability except to account for
property actually received by it, but the Agent shall have no duty to exercise
any of the aforesaid rights, privileges or options and shall not be responsible
for any failure so to do or delay in so doing. Under no circumstances shall the
Agent have, or be deemed to have or to have had, any right to exercise, or to
direct the Pledgor to exercise, any voting, managerial, election or other rights
of an owner of the Pledged Collateral, or arising under the Pledged Collateral,
unless and until the Agent shall have delivered to such Pledgor an Election
Notice as described hereinabove.
7. Cash and Other Distributions. (a) So long as no Event of Default
or Potential Event of Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to receive and retain any and all
cash distributions and interest paid in respect of the Pledged Collateral
(including a distribution of net cash flow) to the extent such
distributions are not prohibited by the Credit Agreement, provided,
however, that any and all
(A) distributions and interest paid or payable other than in
cash with respect to, and instruments and other property received,
receivable or otherwise distributed with respect to, or in exchange
for, any of the Pledged Collateral;
(B) other distributions paid or payable in cash with respect to
any of the Pledged Collateral on account of a partial or total
liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in surplus; and
(C) cash paid, payable or otherwise distributed with respect to
principal of, or in redemption of, or in exchange for, any of the
Pledged Collateral;
shall be Pledged Collateral, and shall be forthwith delivered to the Agent
to hold, for the benefit of the Agent and the Holders of Secured
Obligations, as Pledged
<PAGE> 6
Collateral and shall, if received by the Pledgor, be received in trust
for the Agent, for the benefit of the Agent and the Holders of Secured
Obligations, be segregated from the other property or funds of the
Pledgor, and be delivered immediately to the Agent as Pledged
Collateral in the same form as so received (with any necessary
endorsement); and
(ii) The Agent shall execute and deliver (or cause to be
executed and delivered) to the Pledgor all such proxies and other
instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to receive the distributions or interest payments
which it is authorized to receive and retain pursuant to clause (i)
above.
(b) After the occurrence and during the continuance of an Event of
Default or Potential Event of Default:
(i) All rights of the Pledgor to receive the distributions and
interest payments which it would otherwise be authorized to receive
and retain pursuant to Section 7(a)(i) hereof shall cease, and all
such rights shall thereupon become vested in the Agent, for the
benefit of the Agent and the Holders of Secured Obligations, which
shall thereupon have the sole right to receive and hold as Pledged
Collateral such distributions and interest payments;
(ii) All distributions and interest payments which are received
by the Pledgor contrary to the provisions of clause (i) of this
Section 7(b) shall be received in trust for the Agent, for the benefit
of the Agent and the Holders of Secured Obligations, shall be
segregated from other funds of the Pledgor and shall be paid over
immediately to the Agent as Pledged Collateral in the same form as so
received (with any necessary endorsements).
(c) All sums of money that are delivered to the Agent pursuant to
this Section 7 shall be deposited into an interest bearing account with the
Agent (the "CASH COLLATERAL ACCOUNT"). Some or all of the funds from time
to time in the Cash Collateral Account may be invested in time deposits,
including, without limitation, certificates of deposit issued by the Agent
(such certificates of deposit or other time deposits being hereinafter
referred to, collectively, as "TIME DEPOSITS"), that are satisfactory to
the Agent after consultation with the Pledgor. Interest earned on the Cash
Collateral Account and on the Time Deposits, and the principal of the Time
Deposits at maturity that is not invested in new Time Deposits, shall be
deposited in the Cash Collateral Account. The Cash Collateral Account, all
sums from time to time standing to the credit of the Cash Collateral
Account, any and all Time Deposits, any and all instruments or other
writings evidencing Time Deposits and any and all proceeds of any thereof
are hereinafter referred to as the "Cash Collateral" and shall constitute
Pledged Collateral hereunder. Except as otherwise expressly provided in
Section 13, the Pledgor shall have no right to withdraw sums from the Cash
Collateral Account, to receive any of the Cash Collateral or to require the
agent to part with the Agent's possession of any instruments or other
writings evidencing any Time Deposits.
8. Transfers and Other Liens. The Pledgor agrees that it will not
(i) sell or otherwise dispose of, or grant any option with respect to, any of
the Pledged Collateral without the prior written consent of the Agent, or (ii)
create or permit to exist
<PAGE> 7
any Lien upon or with respect to any of the Pledged Collateral, except for the
security interest under this Agreement. To the extent additional or different
members of GRCL or of GOCL are permitted, Pledgor shall cause as a condition to
permitting such entity to become a member that the new member consent to (i) the
terms of this Agreement; (ii) the Pledge and assignment of the Pledged
Collateral; and (ii) the rights granted hereunder for the Agent to become the/a
member of GRCL or of GOCL at its election.
9. Remedies. (a) The Agent shall have, in addition to any other
rights given under this Agreement or by law, all of the rights and remedies with
respect to the Pledged Collateral of a secured party under the Uniform
Commercial Code as in effect in the State of New York. After the occurrence and
during the continuance of an Event of Default and following written notice to
the Pledgor, the Agent (personally or through an agent) is hereby authorized and
empowered to transfer and register in its name or in the name of its nominee the
whole or any part of the Pledged Collateral, to exercise all voting rights with
respect thereto, to collect and receive all cash distributions and other
distributions made thereon, and to otherwise act with respect to the Pledged
Collateral as though the Agent were the outright owner thereof and the sole
member and manager of GRCL and of GOCL, the Pledgor hereby irrevocably
constituting and appointing the Agent as the proxy and attorney-in-fact of the
Pledgor, with full power of substitution to do so, such proxy becoming effective
upon the occurrence of an Event of Default and following written notice thereof;
provided, however, that the Agent shall have no duty to exercise any such right
or to preserve the same and shall not be liable for any failure to do so or for
any delay in doing so. In addition, after the occurrence of an Event of
Default, the Agent shall have such powers of sale and other powers as may be
conferred by applicable law. With respect to the Pledged Collateral or any part
thereof which shall then be in or shall thereafter come into the possession or
custody of the Agent or which the Agent shall otherwise have the ability to
transfer under applicable law, the Agent may, in its sole discretion, without
notice except as specified below, after the occurrence of an Event of Default,
sell or cause the same to be sold at any exchange, broker's board or at public
or private sale, in one or more sales or lots, at such price as the Agent may
deem best, for cash or on credit or for future delivery, without assumption of
any credit risk, and the purchaser of any or all of the Pledged Collateral so
sold shall thereafter own the same, absolutely free from any claim, encumbrance
or right of any kind whatsoever. The Agent and each of the Holders of Secured
Obligations may, in its own name, or in the name of a designee or nominee, buy
the Pledged Collateral at any public sale and, if permitted by applicable law,
buy the Pledged Collateral at any private sale. The Pledgor will pay to the
Agent all reasonable expenses (including, without limitation, court costs and
reasonable attorneys' and paralegals' fees and expenses) of, or incidental to,
the enforcement of any of the provisions hereof. The Agent agrees to distribute
any proceeds of the sale of the Pledged Collateral in accordance with the Credit
Agreement and the Pledgor shall remain liable for any deficiency following the
sale of the Pledged Collateral.
(b) Unless any of the Pledged Collateral threatens to decline
speedily in value or is or becomes of a type sold on a recognized market, the
Agent will give the Pledgor reasonable notice of the time and place of any
public sale thereof, or of the time after which any private sale or other
intended disposition is to be made. Any sale of the Pledged Collateral
conducted in conformity with reasonable commercial practices of banks,
commercial finance companies, insurance companies or other financial
institutions disposing of property similar to the Pledged Collateral shall be
deemed to be
<PAGE> 8
commercially reasonable. Notwithstanding any provision to the contrary
contained herein, the Pledgor agrees that any requirements of reasonable notice
shall be met if such notice is received by the Pledgor as provided in Section 25
below at least ten (10) Business Days before the time of the sale or
disposition; provided, however, that Agent may give any shorter notice that is
commercially reasonable under the circumstances. Any other requirement of
notice, demand or advertisement for sale is waived, to the extent permitted by
law.
(c) In view of the fact that federal and state securities laws may
impose certain restrictions on the method by which a sale of the Pledged
Collateral may be effected after a Default, the Pledgor agrees that after the
occurrence of an Event of Default, the Agent may, from time to time, attempt to
sell all or any part of the Pledged Collateral by means of a private placement
restricting the bidders and prospective purchasers to those who are qualified
and will represent and agree that they are purchasing for investment only and
not for distribution. In so doing, the Agent may solicit offers to buy the
Pledged Collateral, or any part of it, from a limited number of investors deemed
by the Agent, in its reasonable judgment, to be financially responsible parties
who might be interested in purchasing the Pledged Collateral. If the Agent
solicits such offers from not less than four (4) such investors, then the
acceptance by the Agent of the highest offer obtained therefrom shall be deemed
to be a commercially reasonable method of disposing of such Pledged Collateral;
provided, however, that this Section does not impose a requirement that the
Agent solicit offers from four or more investors in order for the sale to be
commercially reasonable.
10. Security Interest Absolute. All rights of the Agent and security
interests hereunder, and all obligations of the Pledgor hereunder, shall be
absolute and unconditional irrespective of:
(i) Any lack of validity or enforceability of the Credit Agreement or
any other agreement or instrument relating thereto;
(ii) Any change in the time, manner or place of payment of, or in any
other term of, all or any part of the Liabilities, or any other amendment
or waiver of or any consent to any departure from the Credit Agreement;
(iii) Any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any part of the Liabilities; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Pledgor in respect of the
Liabilities or of this Agreement.
11. Agent Appointed Attorney-in-Fact. The Pledgor hereby appoints
the Agent its attorney-in-fact, with full authority, in the name of the Pledgor
or otherwise, after the occurrence and during the continuation of an Event of
Default, from time to time in the Agent's sole discretion, to take any action
and to execute any instrument which the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation, to
receive, endorse and collect all instruments made payable to the Pledgor
representing any cash distribution, interest payment or
<PAGE> 9
other distribution in respect of the Pledged Collateral or any part thereof and
to give full discharge for the same, to exercise all rights of a member and
manager (upon the election of the Agent) such as all voting, consent, managerial
and other member rights, and to arrange for the transfer of all or any part of
the Pledged Collateral on the books of GRCL and of GOCL to the name of the Agent
or the Agent's nominee.
12. Waivers; Marshalling. (a) The Pledgor waives presentment and
demand for payment of any of the Liabilities, protest and notice of dishonor or
default with respect to any of the Liabilities and all other notices to which
the Pledgor might otherwise be entitled except as otherwise expressly provided
herein or in the Credit Agreement.
(b) Neither the Agent nor any Holder of Secured Obligations shall be
required to marshall any present or future collateral security for (including
but not limited to this Agreement and the Pledged Collateral), or other
assurances of payment of, the Obligations or any of them, or to resort to such
collateral security or other assurances of payment in any particular order. All
of the Agent's rights hereunder and of the Holders of Secured Obligations and
the Agent in respect of such collateral security and other assurances of payment
shall be cumulative and in addition to all other rights, however existing or
arising. To the extent that it lawfully may, the Pledgor hereby agrees that it
will not invoke any law relating to the marshalling of collateral that might
cause delay in or impede the enforcement of the Agent's rights under this
Agreement or under any other instrument evidencing any of the Obligations or
under which any of the Obligations is outstanding or by which any of the
Obligations is secured or payment thereof is otherwise assured, and to the
extent that it lawfully may, the Pledgor hereby irrevocably waives the benefits
of all such laws.
13. Term. This Agreement shall remain in full force and effect until
the Liabilities (other than continuing indemnity obligations) have been fully
and indefeasibly paid in cash and the Credit Agreement has terminated pursuant
to its terms. Upon the termination of this Agreement as provided above (other
than as a result of the sale of the Pledged Collateral), the Agent will release
the security interest created hereunder and, if it then has possession of the
Pledged Membership Interest or other Pledged Collateral, will deliver the
Pledged Membership Interest and the Powers or such other Pledged Collateral to
the Pledgor.
14. Definitions. The singular shall include the plural and vice
versa and any gender shall include any other gender as the context may require.
15. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Pledgor, the Agent, for the benefit of itself and
the Holders of Secured Obligations, and their respective successors and assigns.
The Pledgor's successors and assigns shall include, without limitation, a
receiver, trustee or debtor-in-possession of or for the Pledgor.
16. GOVERNING LAW. THE AGENT HEREBY ACCEPTS THIS AGREEMENT, ON
BEHALF OF ITSELF AND THE HOLDERS OF SECURED OBLIGATIONS, AT NEW YORK, NEW YORK
BY ACKNOWLEDGING AND AGREEING TO IT THERE. ANY DISPUTE BETWEEN THE AGENT OR ANY
HOLDER OF SECURED OBLIGATIONS AND THE PLEDGOR ARISING OUT OF OR RELATED TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, AND
<PAGE> 10
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. Consent to Jurisdiction; Counterclaims; Forum Non Conveniens.
(a) Exclusive Jurisdiction. Except as provided in subsection (b) of this
Section 17, the Agent, on behalf of itself and the Holders of Secured
Obligations, and the Pledgor agree that all disputes between them arising out of
or related to the relationship established between them in connection with this
Agreement, whether arising in contract, tort, equity, or otherwise, shall be
resolved only by state or federal courts located in New York, New York, but the
parties acknowledge that any appeals from those courts may have to be heard by a
court located outside of New York, New York.
(b) Other Jurisdictions. The Agent shall have the right to proceed
against the Pledgor or its real or personal property in a court in any location
to enable the Agent to obtain personal jurisdiction over the Pledgor, to realize
on the Pledged Collateral or any other security for the Liabilities or to
enforce a judgment or other court order entered in favor of the Agent. The
Pledgor shall not assert any permissive counterclaims in any proceeding brought
by the Agent arising out of or relating to this Agreement.
(c) Venue; Forum Non Conveniens. Each of the Pledgor and the Agent
waives any objection that it may have (including, without limitation, any
objection to the laying of venue or based on forum non conveniens) to the
location of the court in which any proceeding is commenced in accordance with
this Section 17.
18. Service of Process. The Pledgor waives personal service of any
process upon it and, as security for the Liabilities, irrevocably appoints The
Prentice Hall Corporation System, Inc., 1013 Centre Road, Wilmington, Delaware
19805, as its registered agent for the purpose of accepting service of process
issued by any court.
19. WAIVER OF JURY TRIAL. EACH OF THE PLEDGOR AND THE AGENT WAIVES
ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT,
OR OTHERWISE, BETWEEN THE AGENT AND THE PLEDGOR ARISING OUT OF OR RELATED TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EITHER THE PLEDGOR OR
THE AGENT 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.
20. Waiver of Bond. The Pledgor waives the posting of any bond
otherwise required of the Agent in connection with any judicial process or
proceeding to realize on the Pledged Collateral or any other security for the
Liabilities, to enforce any judgment or other court order entered in favor of
the Agent, or to enforce by specific performance, temporary restraining order,
or preliminary or permanent injunction, this Agreement or any other agreement or
document between the Agent and the Pledgor.
21. Advice of Counsel. The Pledgor represents and warrants to the
Agent and the Holders of Secured Obligations that it has consulted with its
legal counsel regarding all waivers under this Agreement, including without
limitation those under Section 12 and Sections 16 through 20 hereof, that it
believes that it fully understands
<PAGE> 11
all rights that it is waiving and the effect of such waivers, that it assumes
the risk of any misunderstanding that it may have regarding any of the
foregoing, and that it intends that such waivers shall be a material inducement
to the Agent and the Holders of Secured Obligations to extend the indebtedness
secured hereby.
22. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but, if any provision of this Agreement shall be held to be
prohibited or invalid under applicable law, such provision shall be ineffective
only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
23. Further Assurances. The Pledgor agrees that it will cooperate
with the Agent and will execute and deliver, or cause to be executed and
delivered, all such other stock powers, proxies, instruments and documents, and
will take all such other actions, including, without limitation, the execution
and filing of financing statements, as the Agent may reasonably request from
time to time in order to carry out the provisions and purposes of this
Agreement.
24. The Agent's Duty of Care. The Agent shall not be liable for any
acts, omissions, errors of judgment or mistakes of fact or law, including,
without limitation, acts, omissions, errors or mistakes with respect to the
Pledged Collateral, except for those arising out of or in connection with the
Agent's (i) gross negligence or willful misconduct, or (ii) failure to use
reasonable care with respect to the safe custody of the Pledged Collateral in
the Agent's possession. Without limiting the generality of the foregoing, the
Agent shall be under no obligation to take any steps necessary to preserve
rights in the Pledged Collateral against any other parties but may do so at its
option. All expenses incurred in connection therewith shall be for the sole
account of the Pledgor, and shall constitute part of the Liabilities secured
hereby.
25. Notices. All notices and other communications required or
desired to be served, given or delivered hereunder shall be made in the manner
set forth in the Credit Agreement.
26. Amendments, Waivers and Consents. No amendment or waiver of any
provision of this Agreement nor consent to any departure by the Pledgor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Agent pursuant to the terms of the Credit Agreement, and then
such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
27. 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.
28. Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
shall together constitute one and the same agreement.
<PAGE> 12
29. Merger. This Agreement represents the final agreement of the
Pledgor with respect to the matters contained herein and may not be contradicted
by evidence of prior or contemporaneous agreements, or subsequent oral
agreements, between the Pledgor and the Agent or any Holder of Secured
Obligations.
30. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden or proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
<PAGE> 13
IN WITNESS WHEREOF, the Pledgor and the Agent have executed this
Agreement as of the date set forth above.
THE DELTA QUEEN STEAMBOAT CO.
By: /s/ Jordan B. Allen
--------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
THE CHASE MANHATTAN BANK, as Agent
By: /s/ Lisa D. Benitez
----------------------------------
Name: Lisa D. Benitez
Title: Vice President
<PAGE> 14
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the foregoing
Agreement, agrees promptly to note on its books the security interests and
assignment granted under such Agreement, and waives any rights or requirement
at any time hereafter to receive a copy of such Agreement in connection with
the registration of any Pledged Collateral in the name of the Agent or its
nominee or the exercise of voting rights by the Agent or its nominee.
GREAT RIVER CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co., a
Managing Member
By: /s/ Jordan B. Allen
--------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
By: DQSB II, Inc., a Managing Member
By: /s/ Jordan B. Allen
--------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
<PAGE> 15
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the
foregoing Agreement, agrees promptly to note on its books the security
interests and assignment granted under such Agreement, and waives any rights or
requirement at any time hereafter to receive a copy of such Agreement in
connection with the registration of any Pledged Collateral in the name of the
Agent or its nominee or the exercise of voting rights by the Agent or its
nominee.
GREAT OCEAN CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co., a
Managing Member
By: /s/ Jordan B. Allen
--------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
By: DQSB II, Inc., a Managing Member
By: /s/ Jordan B. Allen
--------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
<PAGE> 16
CONSENT
The undersigned hereby acknowledges receipt of a copy of the foregoing
Agreement and consents to the pledge by The Delta Queen Steamboat Co. of its
membership interests in GRCL and GOCL to the Agent.
DQSB II, INC.
By: /s/ Jordan B. Allen
----------------------------
Name: Jordan B. Allen
Title: Senior Vice President
<PAGE> 17
EXHIBIT A
to
LIMITED LIABILITY COMPANY PLEDGE AGREEMENT
dated as of March 26, 1997
Pledged Membership Interests
Percentage of
Membership Interest
Name of the Pledgor
- ---- -------------------
Great River Cruise Line, L.L.C. 99%
Great Ocean Cruise Line, L.L.C. 99%
<PAGE> 18
EXHIBIT B
to
LIMITED LIABILITY COMPANY PLEDGE AGREEMENT
dated as of March 26, 1997
Instruction in Connection with
Uncertificated Securities
March 26, 1997
Limited Liability Company:
[__________________], L.L.C.
MEMBERSHIP INTEREST OWNER:
The Delta Queen Steamboat Co.
Two North Riverside Plaza
Suite 200
Chicago, Illinois 60606
Reference is hereby made to that certain Limited Liability Company
Pledge Agreement dated as of March 26, 1997 (the "PLEDGE") between The Delta
Queen Steamboat Co. (the "INTEREST OWNER"), a member of [_______________],
L.L.C. (the "LIMITED LIABILITY COMPANY"), and The Chase Manhattan Bank, as
Agent, as pledgee (the "PLEDGEE").
1. Pledge Instructions. The Limited Liability Company is hereby
instructed by the Interest Owner to register all of the Interest Owner's right,
title and interest in and to all of the Interest Owner's rights in connection
with any membership interest in the Limited Liability Company now and hereafter
owned by the Interest Owner as subject to a pledge (or assignment) in favor of
the Pledgee who, upon such registration of pledge, shall become the registered
pledgee (or assignee) of the membership interests with all rights incident
thereto.
2. Initial Transaction Statement. The Limited Liability Company is
further instructed by the Interest Owner to promptly inform the Pledgee of the
registration of the pledge by sending the initial transaction statement, in the
form attached hereto as Annex A, to the Pledgee at its office located at 270
Park Avenue, New York, New York 10017.
3. Warranties of the Interest Owner. The Interest Owner hereby
warrants that (i) the Interest Owner is an appropriate person to originate this
instruction; (ii) the Interest Owner is entitled to effect the instruction here
given; and (iii) the Interest Owner's taxpayer identification number is 72-
1245383.
<PAGE> 19
IN WITNESS WHEREOF, the Interest Owner has caused this Pledge
Instruction to be duly signed and delivered by its officer duly authorized as of
the date first above written.
THE DELTA QUEEN STEAMBOAT CO.
By:__________________________
Name: _______________________
Title:_______________________
CONSENT OF THE LIMITED LIABILITY COMPANY
[________________], L.L.C. (the "LIMITED LIABILITY COMPANY") hereby
certifies that the Limited Liability Company consents and agrees to cause to be
registered on the books and records of the Limited Liability Company the pledge
of the membership interests referenced above and further agrees that upon
receipt of written notice from the Pledgee that a default by the Interest Owner
under the terms of any of the loan documents between the Interest Owner and the
Pledgee has occurred and is continuing, the Limited Liability Company shall pay
and remit to the Pledgee all distributions and other amounts payable to the
Interest Owner upon redemption, termination and dissolution of the Limited
Liability Company or otherwise.
[_______________________], L.L.C.
By: The Delta Queen Steamboat Co.,
a Managing Member
By: _________________________
Name: Jordan B. Allen
Title: Senior Vice President
By: DQSB II, Inc., a Managing Member
By: _________________________
Name: Jordan B. Allen
Title: Senior Vice President
<PAGE> 20
Annex A
to
Pledge Instruction
Form of Initial Transaction Statement
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Reference is hereby made to that certain Limited Liability Company
Pledge Agreement dated as of March 26, 1997 (the "PLEDGE") between The Delta
Queen Steamboat Co. (the "INTEREST OWNER"), a member of [________________],
L.L.C. (the "LIMITED LIABILITY COMPANY"), and The Chase Manhattan Bank, as
Agent, as pledgee (the "PLEDGEE").
On ______________ __, 1997, the Limited Liability Company caused the
pledge (or assignment) of the 99% membership interest ("MEMBERSHIP INTEREST") by
the Interest Owner in favor of the Pledgee to be registered on the books and
records of the Limited Liability Company. Except for the pledge in favor of the
Pledgor, to the knowledge of the Limited Liability Company, there are no liens,
restrictions or adverse claims (as to which the Limited Liability Company has a
duty under Section 8-403 of the Uniform Commercial Code) to which the Membership
Interest is, or may be subject, as of the date hereof.
The name of the owner of record of the Membership Interest is the
Interest Owner. The address of the Interest Owner is set forth above. The
taxpayer identification number of the Interest Owner is 72-1245383.
The name of the registered pledgee of the Membership Interest is The
Chase Manhattan Bank, as Agent, for its benefit and the benefit of Holders of
Secured Obligations. The address of the Pledgee is set forth above. The
taxpayer identification number of the Pledgee is 13-4994650.
<PAGE> 21
THIS STATEMENT IS MERELY A RECORD OF THE RIGHTS OF THE ADDRESSEES AS
OF THE TIME OF ITS ISSUANCE. DELIVERY OF THIS STATEMENT, OF ITSELF, CONFERS NO
RIGHTS ON THE RECIPIENTS. THIS STATEMENT IS NEITHER A NEGOTIABLE INSTRUMENT NOR
A SECURITY.
[_______________________], L.L.C.
By: The Delta Queen Steamboat Co.,
a Managing Member
By: _________________________
Name: Jordan B. Allen
Title: Senior Vice President
By: DQSB II, INC. a Managing Member
By: _________________________
Name: Jordan B. Allen
Title: Senior Vice President
<PAGE> 1
EXHIBIT 4.(ii)(a)(39)
LIMITED LIABILITY COMPANY PLEDGE AGREEMENT
THIS LIMITED LIABILITY COMPANY PLEDGE AGREEMENT ("AGREEMENT") is made
as of March 26, 1997 by DQSB II, INC., a Delaware corporation ("PLEDGOR"), a
member of Great River Cruise Line, L.L.C., a Delaware limited liability company
("GRCL"), and a member of Great Ocean Cruise Line, L.L.C., a Delaware limited
liability company ("GOCL"), and The Chase Manhattan Bank, as agent (the
"AGENT"), for its benefit and the benefit of the Holders of Secured Obligations
(as such term is defined in the Credit Agreement referred to below).
Capitalized terms used herein and not herein defined shall have the same
meanings assigned to such terms in the Credit Agreement described below.
R E C I T A L S:
A. The Delta Queen Steamboat Co. a Delaware corporation
("Borrower"), certain financial institutions (such financial institutions being
herein referred to collectively as the "LENDERS"), and the Agent as one of the
Lenders and as the agent for the Lenders have entered into the Third Amended and
Restated Credit Agreement dated as of April 22, 1996, as amended through the
date hereof (as amended, restated, supplemented or modified from time to time,
the "CREDIT AGREEMENT"), pursuant to which the Lenders have agreed, subject to
certain conditions precedent, to make loans and other financial accommodations
to the Borrower from time to time.
B. It is a condition precedent to the making of the loans to the
Borrower under the Credit Agreement that this Agreement shall be executed and
delivered by the Pledgor to the Lender and that this Agreement shall be in full
force and effect.
C. The Pledgor desires to secure its "LIABILITIES" (as
hereinafter defined) to the Lender by the grant to the Lender of a first
priority security interest in the Pledged Collateral (as hereinafter defined).
ACCORDINGLY, for and in consideration of the foregoing and of any
financial accommodations or extensions of credit (including, without limitation,
any loan or advance by renewal, refinancing or extension of the agreements
described hereinabove or otherwise) heretofore, now or hereafter made to or for
the benefit of the Borrower pursuant to the Credit Agreement or any other
agreement, instrument or document executed pursuant to or in connection
therewith, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Pledgor and the Agent hereby
agree as follows:
1. Pledge. The Pledgor hereby pledges, grants and assigns to
the Agent, for the benefit of the Agent and the Holders of Secured Obligations,
and grants to the Agent for the benefit of the Agent and the Holders of Secured
Obligations, a security interest in, the following (collectively, the "PLEDGED
COLLATERAL"):
<PAGE> 2
(a) The membership interest of Pledgor in GRCL and in GOCL now or at
any time or times hereafter owned by the Pledgor, and any certificates
representing such membership interest in GRCL or in GOCL (such membership
interests being identified on Exhibit A attached hereto and made a part
hereof), all of the right, title and interest of the Pledgor in, to and
under its respective percentage interest, shares or units as a member
including, without limitation, Pledgor's interest in (or allocation of) the
profits, losses, income, gains, deductions, credits or similar items of
GRCL and of GOCL and the right to receive distributions of GRCL's and
GOCL's cash, other property, assets, and all options and warrants for the
purchase of membership interests, whether now existing or hereafter
arising, whether arising under the terms of the Certificate of Formation,
the Amended and Restated Limited Liability Company Agreement or any of the
other organizational documents (such documents hereinafter collectively
referred to as the "OPERATING AGREEMENTS") of GRCL or of GOCL, or at law or
in equity, or otherwise and any and all of the proceeds thereof (all of
said membership interests, certificates, and warrants being hereinafter
collectively referred to as the "PLEDGED MEMBERSHIP INTEREST") herewith
delivered to the Agent accompanied by the certificates or other writings
evidencing the same, accompanied by duly executed instruments of transfer
or assignments in blank, all in form and substance satisfactory to the
Agent (such instruments being collectively referred to hereinafter as the
"POWERS") duly executed in blank, and all distributions, cash, instruments
and other property from time to time received, receivable or otherwise
distributed in respect of, or in exchange for, any or all of the Pledged
Membership Interest;
(b) Any additional membership interests in GRCL or GOCL from time to
time acquired by the Pledgor in any manner, and any certificates
representing such additional membership interests or any additional
percentage interests, shares, units, options or warrants of membership
interests in GRCL or in GOCL (any such additional interests shall
constitute part of the Pledged Membership Interest and the Agent is
irrevocably authorized to amend Exhibit A from time to time to reflect such
additional shares), and all options, warrants, distributions, cash,
instruments and other rights and options from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of such shares and will promptly thereafter deliver to the Lender, a
certificate duly executed by the Pledgor describing such percentage
interests, certificates, units, options or warrants and certifying that the
same have been duly pledged hereunder;
(c) The property and interests in property described in Section 3
below; and
(d) All proceeds of the foregoing.
<PAGE> 3
2. Security for Liabilities. The Pledged Collateral secures the
prompt payment, performance and observance of (i) the Obligations and (ii) the
Pledgor's obligations and liabilities under this Agreement and each agreement,
document or instrument executed pursuant to or in connection with this Agreement
(all such obligations and liabilities of the Pledgor and the Borrower now or
hereafter existing being hereinafter referred to as the "LIABILITIES").
3. Pledged Collateral Adjustments. If, during the term of this
Agreement:
(a) Any reclassification, readjustment or other change is declared or
made in the capital structure of GRCL or of GOCL, or any option included
within the Pledged Collateral is exercised, or both, or
(b) Any subscription, warrants or any other rights or options shall
be issued in connection with the Pledged Collateral,
then all new, substituted and additional membership interests, certificates,
warrants, rights, options or other securities, issued by reason of any of the
foregoing, shall be immediately delivered to and held by the Agent under the
terms of this Agreement and shall constitute Pledged Collateral hereunder;
provided, however, that nothing contained in this Section 3 shall be deemed to
permit any distribution, issuance of additional membership interests, warrants,
rights or options, reclassification, readjustment or other change in the capital
structure of GRCL or of GOCL which is not expressly permitted in the Credit
Agreement.
4. Subsequent Changes Affecting Pledged Collateral. The Pledgor
represents and warrants that it has made its own arrangements for keeping itself
informed of changes or potential changes affecting the Pledged Collateral
(including, but not limited to, rights to convert, rights to subscribe, cash
distributions or other distributions, reorganization or other exchanges, tender
offers and voting rights), and the Pledgor agrees that neither the Agent nor any
of the Holders of Secured Obligations shall have any obligation to inform the
Pledgor of any such changes or potential changes or to take any action or omit
to take any action with respect thereto. The Agent may, after the occurrence of
an Event of Default, without notice and at its option, transfer or register the
Pledged Collateral or any part thereof into its or its nominee's name with or
without any indication that such Pledged Collateral is subject to the security
interest hereunder. In addition, the Agent may at any time exchange
certificates or instruments representing or evidencing Pledged Membership
Interests for certificates or instruments of smaller or larger denominations.
5. Representations and Warranties. The Pledgor represents and
warrants as follows:
(a) The Pledgor is the sole legal and beneficial owner of the
membership interests in GRCL and in GOCL pledged to the Agent pursuant to
this Agreement, free and clear of any Lien except for the security interest
created by this Agreement;
<PAGE> 4
(b) This Agreement has been duly and validly authorized, executed and
delivered by Pledgor and constitutes the legal, valid and binding
obligation of the Pledgor enforceable against the Pledgor in accordance
with its terms except as enforcement may be limited by bankruptcy,
insolvency and other similar laws affecting the enforcement of creditors'
rights generally and by moratorium laws from time to time in effect and
general equitable principles;
(c) Such Pledgor is the direct beneficial owner of the Pledged
Collateral hereby pledged by it;
(d) The Pledgor owns such Pledged Collateral free and clear of any
Lien, except for the pledge and security interest granted to the Agent and
the Holders of Secured Obligations hereunder;
(e) The Pledgor shall cause GRCL and GOCL to make a notation on
their respective records, which notation shall indicate the security
interest granted hereby, and such Pledgor agrees to execute and file
financing statements pursuant to the Uniform Commercial Code as the Agent
may request to perfect the security interest granted hereby, and such
Pledgor agrees to execute and deliver to GRCL and to GOCL a Pledge
Instruction in the form of Exhibit B hereto;
(f) The pledge of the Pledged Collateral by the Pledgor does not
violate (1) the Operating Agreements of GRCL or of GOCL or any of the other
organizational documents of GRCL or of GOCL; (2) the certificate of
incorporation or by-laws of the Pledgor; (3) any indenture, mortgage, loan
or credit agreement to which the Pledgor, GRCL or GOCL is a party or by
which any of their respective properties or assets may be bound; or (4) any
restriction on such transfer or encumbrance of such Pledged Collateral;
(g) Except as set forth in the Operating Agreements, there are no
restrictions upon the voting rights associated with, or upon the transfer
of, any of the Pledged Collateral;
(h) Except as set forth in the Operating Agreements, the Pledgor has
the right to vote, pledge, assign and grant a security interest in or
otherwise transfer such Pledged Collateral free of any Liens;
(i) No authorization, approval, or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
either (i) for the pledge of the Pledged Collateral pursuant to this
Agreement or for the execution, delivery or performance of this Agreement
by the Pledgor or (ii) for the exercise by the Agent of the voting or other
rights provided for in this Agreement or the remedies in respect of the
Pledged Collateral pursuant to this Agreement (except as may be required in
connection with such disposition by laws affecting the offering and sale of
securities generally);
(j) The pledge of the Pledged Collateral pursuant to this Agreement
creates a valid and perfected first priority security interest in the
Pledged
<PAGE> 5
Collateral, in favor of the Agent for the benefit of the Agent and the
Holders of Secured Obligations, securing the payment and performance of the
Liabilities;
(k) The pledge of the Pledge Collateral pursuant to this Agreement
constitutes a complete assignment of the Pledged Collateral pursuant to 6
Del. Code Ann. Section 18-702 (1996).
6. Voting Rights and Other Powers. During the term of this
Agreement, and except as provided in this Section 6 below, the Pledgor shall
have (i) the right to vote the Pledged Membership Interest on all questions in a
manner not inconsistent with the terms of this Agreement, the Credit Agreement
and any other agreement, instrument or document executed pursuant thereto or in
connection therewith, and (ii) the right to be the member and manager of GRCL
and/or GOCL, and shall be entitled to exercise all managerial, election and
other rights relating to the Pledged Collateral. After the occurrence or during
the continuance of an Event of Default, the Agent or the Agent's nominee may, at
the Agent's or such nominee's option and following written notice ("ELECTION
NOTICE") from the Agent to the Pledgor (x) exercise, or direct such Pledgor as
to the exercise of (whereupon such Pledgor shall exercise as so directed), all
voting, consent, managerial, election and other membership and manager rights to
the Pledged Collateral of the Pledgor; such authorization shall constitute an
irrevocable voting proxy from the Pledgor to the Agent or, at the Agent's
option, to the Agent's nominee; and (y) exercise, or direct such Pledgor as to
the exercise of (whereupon the Pledgor shall exercise as so directed), any and
all rights of conversion, exchange, subscription or any other rights, privileges
or options pertaining to the Pledged Collateral of the Pledgor as if the Agent
were the absolute owner thereof, all without liability except to account for
property actually received by it, but the Agent shall have no duty to exercise
any of the aforesaid rights, privileges or options and shall not be responsible
for any failure so to do or delay in so doing. Under no circumstances shall the
Agent have, or be deemed to have or to have had, any right to exercise, or to
direct the Pledgor to exercise, any voting, managerial, election or other rights
of an owner of the Pledged Collateral, or arising under the Pledged Collateral,
unless and until the Agent shall have delivered to such Pledgor an Election
Notice as described hereinabove.
7. Cash and Other Distributions. (a) So long as no Event of Default
or Potential Event of Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to receive and retain any and all
cash distributions and interest paid in respect of the Pledged Collateral
(including a distribution of net cash flow) to the extent such
distributions are not prohibited by the Credit Agreement, provided,
however, that any and all
(A) distributions and interest paid or payable other than in
cash with respect to, and instruments and other property received,
receivable or otherwise distributed with respect to, or in exchange
for, any of the Pledged Collateral;
(B) other distributions paid or payable in cash with respect to
any of the Pledged Collateral on account of a partial or total
liquidation or
<PAGE> 6
dissolution or in connection with a reduction of capital, capital
surplus or paid-in surplus; and
(C) cash paid, payable or otherwise distributed with respect to
principal of, or in redemption of, or in exchange for, any of the
Pledged Collateral;
shall be Pledged Collateral, and shall be forthwith delivered to the Agent
to hold, for the benefit of the Agent and the Holders of Secured
Obligations, as Pledged Collateral and shall, if received by the Pledgor,
be received in trust for the Agent, for the benefit of the Agent and the
Holders of Secured Obligations, be segregated from the other property or
funds of the Pledgor, and be delivered immediately to the Agent as Pledged
Collateral in the same form as so received (with any necessary
endorsement); and
(ii) The Agent shall execute and deliver (or cause to be executed and
delivered) to the Pledgor all such proxies and other instruments as the
Pledgor may reasonably request for the purpose of enabling the Pledgor to
receive the distributions or interest payments which it is authorized to
receive and retain pursuant to clause (i) above.
(b) After the occurrence and during the continuance of an Event of Default
or Potential Event of Default:
(i) All rights of the Pledgor to receive the distributions and
interest payments which it would otherwise be authorized to receive and
retain pursuant to Section 7(a)(i) hereof shall cease, and all such rights
shall thereupon become vested in the Agent, for the benefit of the Agent
and the Holders of Secured Obligations, which shall thereupon have the sole
right to receive and hold as Pledged Collateral such distributions and
interest payments;
(ii) All distributions and interest payments which are received by
the Pledgor contrary to the provisions of clause (i) of this Section 7(b)
shall be received in trust for the Agent, for the benefit of the Agent and
the Holders of Secured Obligations, shall be segregated from other funds of
the Pledgor and shall be paid over immediately to the Agent as Pledged
Collateral in the same form as so received (with any necessary
endorsements).
(c) All sums of money that are delivered to the Agent pursuant to this
Section 7 shall be deposited into an interest bearing account with the Agent
(the "CASH COLLATERAL ACCOUNT"). Some or all of the funds from time to time in
the Cash Collateral Account may be invested in time deposits, including, without
limitation, certificates of deposit issued by the Agent (such certificates of
deposit or other time deposits being hereinafter referred to, collectively, as
"TIME DEPOSITS"), that are satisfactory to the Agent after consultation with the
Pledgor. Interest earned on the Cash Collateral Account and on the Time
Deposits, and the principal of the Time Deposits at maturity that is not
invested in new Time Deposits, shall be deposited in the Cash Collateral
Account. The Cash Collateral Account, all sums from time to time standing to
the credit of the Cash
<PAGE> 7
Collateral Account, any and all Time Deposits, any and all instruments or other
writings evidencing Time Deposits and any and all proceeds of any thereof are
hereinafter referred to as the "Cash Collateral" and shall constitute Pledged
Collateral hereunder. Except as otherwise expressly provided in Section 13, the
Pledgor shall have no right to withdraw sums from the Cash Collateral Account,
to receive any of the Cash Collateral or to require the agent to part with the
Agent's possession of any instruments or other writings evidencing any Time
Deposits.
8. Transfers and Other Liens. The Pledgor agrees that it will not
(i) sell or otherwise dispose of, or grant any option with respect to, any of
the Pledged Collateral without the prior written consent of the Agent, or (ii)
create or permit to exist any Lien upon or with respect to any of the Pledged
Collateral, except for the security interest under this Agreement. To the
extent additional or different members of GRCL or of GOCL are permitted, Pledgor
shall cause as a condition to permitting such entity to become a member that the
new member consent to (i) the terms of this Agreement; (ii) the Pledge and
assignment of the Pledged Collateral; and (ii) the rights granted hereunder for
the Agent to become the/a member of GRCL or of GOCL at its election.
9. Remedies. (a) The Agent shall have, in addition to any other
rights given under this Agreement or by law, all of the rights and remedies with
respect to the Pledged Collateral of a secured party under the Uniform
Commercial Code as in effect in the State of New York. After the occurrence and
during the continuance of an Event of Default and following written notice to
the Pledgor, the Agent (personally or through an agent) is hereby authorized and
empowered to transfer and register in its name or in the name of its nominee the
whole or any part of the Pledged Collateral, to exercise all voting rights with
respect thereto, to collect and receive all cash distributions and other
distributions made thereon, and to otherwise act with respect to the Pledged
Collateral as though the Agent were the outright owner thereof and the sole
member and manager of GRCL and of GOCL, the Pledgor hereby irrevocably
constituting and appointing the Agent as the proxy and attorney-in-fact of the
Pledgor, with full power of substitution to do so, such proxy becoming effective
upon the occurrence of an Event of Default and following written notice thereof;
provided, however, that the Agent shall have no duty to exercise any such right
or to preserve the same and shall not be liable for any failure to do so or for
any delay in doing so. In addition, after the occurrence of an Event of
Default, the Agent shall have such powers of sale and other powers as may be
conferred by applicable law. With respect to the Pledged Collateral or any part
thereof which shall then be in or shall thereafter come into the possession or
custody of the Agent or which the Agent shall otherwise have the ability to
transfer under applicable law, the Agent may, in its sole discretion, without
notice except as specified below, after the occurrence of an Event of Default,
sell or cause the same to be sold at any exchange, broker's board or at public
or private sale, in one or more sales or lots, at such price as the Agent may
deem best, for cash or on credit or for future delivery, without assumption of
any credit risk, and the purchaser of any or all of the Pledged Collateral so
sold shall thereafter own the same, absolutely free from any claim, encumbrance
or right of any kind whatsoever. The Agent and each of the Holders of Secured
Obligations may, in its own name, or in the name of a designee or nominee, buy
the Pledged Collateral at any public sale and, if permitted by applicable law,
buy the Pledged Collateral at any private sale. The Pledgor will pay to the
Agent all reasonable expenses (including, without limitation, court costs and
reasonable attorneys' and
<PAGE> 8
paralegals' fees and expenses) of, or incidental to, the enforcement of any of
the provisions hereof. The Agent agrees to distribute any proceeds of the sale
of the Pledged Collateral in accordance with the Credit Agreement and the
Pledgor shall remain liable for any deficiency following the sale of the
Pledged Collateral.
(b) Unless any of the Pledged Collateral threatens to decline
speedily in value or is or becomes of a type sold on a recognized market, the
Agent will give the Pledgor reasonable notice of the time and place of any
public sale thereof, or of the time after which any private sale or other
intended disposition is to be made. Any sale of the Pledged Collateral
conducted in conformity with reasonable commercial practices of banks,
commercial finance companies, insurance companies or other financial
institutions disposing of property similar to the Pledged Collateral shall be
deemed to be commercially reasonable. Notwithstanding any provision to the
contrary contained herein, the Pledgor agrees that any requirements of
reasonable notice shall be met if such notice is received by the Pledgor as
provided in Section 25 below at least ten (10) Business Days before the time of
the sale or disposition; provided, however, that Agent may give any shorter
notice that is commercially reasonable under the circumstances. Any other
requirement of notice, demand or advertisement for sale is waived, to the extent
permitted by law.
(c) In view of the fact that federal and state securities laws may
impose certain restrictions on the method by which a sale of the Pledged
Collateral may be effected after a Default, the Pledgor agrees that after the
occurrence of an Event of Default, the Agent may, from time to time, attempt to
sell all or any part of the Pledged Collateral by means of a private placement
restricting the bidders and prospective purchasers to those who are qualified
and will represent and agree that they are purchasing for investment only and
not for distribution. In so doing, the Agent may solicit offers to buy the
Pledged Collateral, or any part of it, from a limited number of investors deemed
by the Agent, in its reasonable judgment, to be financially responsible parties
who might be interested in purchasing the Pledged Collateral. If the Agent
solicits such offers from not less than four (4) such investors, then the
acceptance by the Agent of the highest offer obtained therefrom shall be deemed
to be a commercially reasonable method of disposing of such Pledged Collateral;
provided, however, that this Section does not impose a requirement that the
Agent solicit offers from four or more investors in order for the sale to be
commercially reasonable.
10. Security Interest Absolute. All rights of the Agent and security
interests hereunder, and all obligations of the Pledgor hereunder, shall be
absolute and unconditional irrespective of:
(i) Any lack of validity or enforceability of the Credit Agreement or
any other agreement or instrument relating thereto;
(ii) Any change in the time, manner or place of payment of, or in any
other term of, all or any part of the Liabilities, or any other amendment
or waiver of or any consent to any departure from the Credit Agreement;
<PAGE> 9
(iii) Any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any part of the Liabilities; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Pledgor in respect of the
Liabilities or of this Agreement.
11. Agent Appointed Attorney-in-Fact. The Pledgor hereby appoints
the Agent its attorney-in-fact, with full authority, in the name of the Pledgor
or otherwise, after the occurrence and during the continuation of an Event of
Default, from time to time in the Agent's sole discretion, to take any action
and to execute any instrument which the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation, to
receive, endorse and collect all instruments made payable to the Pledgor
representing any cash distribution, interest payment or other distribution in
respect of the Pledged Collateral or any part thereof and to give full discharge
for the same, to exercise all rights of a member and manager (upon the election
of the Agent) such as all voting, consent, managerial and other member rights,
and to arrange for the transfer of all or any part of the Pledged Collateral on
the books of GRCL and of GOCL to the name of the Agent or the Agent's nominee.
12. Waivers; Marshalling. (a) The Pledgor waives presentment and
demand for payment of any of the Liabilities, protest and notice of dishonor or
default with respect to any of the Liabilities and all other notices to which
the Pledgor might otherwise be entitled except as otherwise expressly provided
herein or in the Credit Agreement.
(b) Neither the Agent nor any Holder of Secured Obligations shall be
required to marshall any present or future collateral security for (including
but not limited to this Agreement and the Pledged Collateral), or other
assurances of payment of, the Obligations or any of them, or to resort to such
collateral security or other assurances of payment in any particular order. All
of the Agent's rights hereunder and of the Holders of Secured Obligations and
the Agent in respect of such collateral security and other assurances of payment
shall be cumulative and in addition to all other rights, however existing or
arising. To the extent that it lawfully may, the Pledgor hereby agrees that it
will not invoke any law relating to the marshalling of collateral that might
cause delay in or impede the enforcement of the Agent's rights under this
Agreement or under any other instrument evidencing any of the Obligations or
under which any of the Obligations is outstanding or by which any of the
Obligations is secured or payment thereof is otherwise assured, and to the
extent that it lawfully may, the Pledgor hereby irrevocably waives the benefits
of all such laws.
13. Term. This Agreement shall remain in full force and effect until
the Liabilities (other than continuing indemnity obligations) have been fully
and indefeasibly paid in cash and the Credit Agreement has terminated pursuant
to its terms. Upon the termination of this Agreement as provided above (other
than as a result of the sale of the Pledged Collateral), the Agent will release
the security interest created hereunder and, if it then has possession of the
Pledged Membership Interest or other Pledged
<PAGE> 10
Collateral, will deliver the Pledged Membership Interest and the Powers or such
other Pledged Collateral to the Pledgor.
14. Definitions. The singular shall include the plural and vice
versa and any gender shall include any other gender as the context may require.
15. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Pledgor, the Agent, for the benefit of itself and
the Holders of Secured Obligations, and their respective successors and assigns.
The Pledgor's successors and assigns shall include, without limitation, a
receiver, trustee or debtor-in-possession of or for the Pledgor.
16. GOVERNING LAW. THE AGENT HEREBY ACCEPTS THIS AGREEMENT, ON
BEHALF OF ITSELF AND THE HOLDERS OF SECURED OBLIGATIONS, AT NEW YORK, NEW YORK
BY ACKNOWLEDGING AND AGREEING TO IT THERE. ANY DISPUTE BETWEEN THE AGENT OR ANY
HOLDER OF SECURED OBLIGATIONS AND THE PLEDGOR ARISING OUT OF OR RELATED TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, AND
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. Consent to Jurisdiction; Counterclaims; Forum Non Conveniens.
(a) Exclusive Jurisdiction. Except as provided in subsection (b) of this
Section 17, the Agent, on behalf of itself and the Holders of Secured
Obligations, and the Pledgor agree that all disputes between them arising out of
or related to the relationship established between them in connection with this
Agreement, whether arising in contract, tort, equity, or otherwise, shall be
resolved only by state or federal courts located in New York, New York, but the
parties acknowledge that any appeals from those courts may have to be heard by a
court located outside of New York, New York.
(b) Other Jurisdictions. The Agent shall have the right to proceed
against the Pledgor or its real or personal property in a court in any location
to enable the Agent to obtain personal jurisdiction over the Pledgor, to realize
on the Pledged Collateral or any other security for the Liabilities or to
enforce a judgment or other court order entered in favor of the Agent. The
Pledgor shall not assert any permissive counterclaims in any proceeding brought
by the Agent arising out of or relating to this Agreement.
(c) Venue; Forum Non Conveniens. Each of the Pledgor and the Agent
waives any objection that it may have (including, without limitation, any
objection to the laying of venue or based on forum non conveniens) to the
location of the court in which any proceeding is commenced in accordance with
this Section 17.
18. Service of Process. The Pledgor waives personal service of any
process upon it and, as security for the Liabilities, irrevocably appoints The
Prentice Hall Corporation System, Inc., 1013 Centre Road, Wilmington, Delaware
19805, as its registered agent for the purpose of accepting service of process
issued by any court.
19. WAIVER OF JURY TRIAL. EACH OF THE PLEDGOR AND THE AGENT WAIVES
ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT,
OR
<PAGE> 11
OTHERWISE, BETWEEN THE AGENT AND THE PLEDGOR ARISING OUT OF OR RELATED
TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EITHER THE
PLEDGOR OR THE AGENT 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.
20. Waiver of Bond. The Pledgor waives the posting of any bond
otherwise required of the Agent in connection with any judicial process or
proceeding to realize on the Pledged Collateral or any other security for the
Liabilities, to enforce any judgment or other court order entered in favor of
the Agent, or to enforce by specific performance, temporary restraining order,
or preliminary or permanent injunction, this Agreement or any other agreement or
document between the Agent and the Pledgor.
21. Advice of Counsel. The Pledgor represents and warrants to the
Agent and the Holders of Secured Obligations that it has consulted with its
legal counsel regarding all waivers under this Agreement, including without
limitation those under Section 12 and Sections 16 through 20 hereof, that it
believes that it fully understands all rights that it is waiving and the effect
of such waivers, that it assumes the risk of any misunderstanding that it may
have regarding any of the foregoing, and that it intends that such waivers shall
be a material inducement to the Agent and the Holders of Secured Obligations to
extend the indebtedness secured hereby.
22. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but, if any provision of this Agreement shall be held to be
prohibited or invalid under applicable law, such provision shall be ineffective
only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
23. Further Assurances. The Pledgor agrees that it will cooperate
with the Agent and will execute and deliver, or cause to be executed and
delivered, all such other stock powers, proxies, instruments and documents, and
will take all such other actions, including, without limitation, the execution
and filing of financing statements, as the Agent may reasonably request from
time to time in order to carry out the provisions and purposes of this
Agreement.
24. The Agent's Duty of Care. The Agent shall not be liable for any
acts, omissions, errors of judgment or mistakes of fact or law, including,
without limitation, acts, omissions, errors or mistakes with respect to the
Pledged Collateral, except for those arising out of or in connection with the
Agent's (i) gross negligence or willful misconduct, or (ii) failure to use
reasonable care with respect to the safe custody of the Pledged Collateral in
the Agent's possession. Without limiting the generality of the foregoing, the
Agent shall be under no obligation to take any steps necessary to preserve
rights in the Pledged Collateral against any other parties but may do so at its
option. All expenses incurred in connection therewith shall be for the sole
account of the Pledgor, and shall constitute part of the Liabilities secured
hereby.
<PAGE> 12
25. Notices. The Pledgor appoints Borrower as its agent to receive
notices and other communications under this Agreement. Any such notice or
communication received by Borrower under this Agreement shall be deemed to have
been received by the Pledgor. All such notices to Borrower shall be given in
the manner and to the addresses set forth in the Credit Agreement.
26. Amendments, Waivers and Consents. No amendment or waiver of any
provision of this Agreement nor consent to any departure by the Pledgor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Agent pursuant to the terms of the Credit Agreement, and then
such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
27. 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.
28. Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
shall together constitute one and the same agreement.
29. Merger. This Agreement represents the final agreement of the
Pledgor with respect to the matters contained herein and may not be contradicted
by evidence of prior or contemporaneous agreements, or subsequent oral
agreements, between the Pledgor and the Agent or any Holder of Secured
Obligations.
30. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden or proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
<PAGE> 13
IN WITNESS WHEREOF, the Pledgor and the Agent have executed this
Agreement as of the date set forth above.
DQSB II, INC.
By: \s\ Jordan B. Allen
--------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
THE CHASE MANHATTAN BANK, as Agent
By: \s\ Lisa D. Benitez
----------------------------------
Name: Lisa D. Benitez
Title: Vice President
<PAGE> 14
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the
foregoing Agreement, agrees promptly to note on its books the security
interests and assignment granted under such Agreement, and waives any rights or
requirement at any time hereafter to receive a copy of such Agreement in
connection with the registration of any Pledged Collateral in the name of the
Agent or its nominee or the exercise of voting rights by the Agent or its
nominee.
GREAT RIVER CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co., a
Managing Member
By: \s\ Jordan B. Allen
--------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
By: DQSB II, Inc., a Managing Member
By: \s\ Jordan B. Allen
--------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
<PAGE> 15
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the foregoing
Agreement, agrees promptly to note on its books the security interests and
assignment granted under such Agreement, and waives any rights or requirement
at any time hereafter to receive a copy of such Agreement in connection with
the registration of any Pledged Collateral in the name of the Agent or its
nominee or the exercise of voting rights by the Agent or its nominee.
GREAT OCEAN CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co., a
Managing Member
By: \s\ Jordan B. Allen
--------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
By: DQSB II, Inc., a Managing Member
By: \s\ Jordan B. Allen
--------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
<PAGE> 16
CONSENT
The undersigned hereby acknowledges receipt of a copy of the foregoing
Agreement and consents to the pledge by DQSB II, Inc. of its membership
interests in GRCL and GOCL to the Agent.
THE DELTA QUEEN STEAMBOAT CO.
By: \s\ Jordan B. Allen
----------------------------
Name: Jordan B. Allen
Title: Senior Vice President
<PAGE> 17
EXHIBIT A
to
LIMITED LIABILITY COMPANY PLEDGE AGREEMENT
dated as of March 26, 1997
Pledged Membership Interests
Percentage of
Membership Interest
Name of the Pledgor
- ---- -------------------
Great River Cruise Line, L.L.C. 1%
Great Ocean Cruise Line, L.L.C. 1%
<PAGE> 18
EXHIBIT B
to
LIMITED LIABILITY COMPANY PLEDGE AGREEMENT
dated as of March 26, 1997
Instruction in Connection with
Uncertificated Securities
March 26, 1997
Limited Liability Company:
[__________________], L.L.C.
MEMBERSHIP INTEREST OWNER:
DQSB II, Inc.
Two North Riverside Plaza
Suite 200
Chicago, Illinois 60606
Reference is hereby made to that certain Limited Liability Company
Pledge Agreement dated as of March 26, 1997 (the "PLEDGE") between DQSB II,
Inc.(the "INTEREST OWNER"), a member of [_______________], L.L.C. (the "LIMITED
LIABILITY COMPANY"), and The Chase Manhattan Bank, as Agent, as pledgee (the
"PLEDGEE").
1. Pledge Instructions. The Limited Liability Company is hereby
instructed by the Interest Owner to register all of the Interest Owner's right,
title and interest in and to all of the Interest Owner's rights in connection
with any membership interest in the Limited Liability Company now and hereafter
owned by the Interest Owner as subject to a pledge (or assignment) in favor of
the Pledgee who, upon such registration of pledge, shall become the registered
pledgee (or assignee) of the membership interests with all rights incident
thereto.
2. Initial Transaction Statement. The Limited Liability Company is
further instructed by the Interest Owner to promptly inform the Pledgee of the
registration of the pledge by sending the initial transaction statement, in the
form attached hereto as Annex A, to the Pledgee at its office located at 270
Park Avenue, New York, New York 10017.
3. Warranties of the Interest Owner. The Interest Owner hereby
warrants that (i) the Interest Owner is an appropriate person to originate this
instruction; (ii) the Interest Owner is entitled to effect the instruction here
given; and (iii) the Interest Owner's taxpayer identification number is 72-
1245383.
<PAGE> 19
IN WITNESS WHEREOF, the Interest Owner has caused this Pledge
Instruction to be duly signed and delivered by its officer duly authorized as of
the date first above written.
DQSB II, INC.
By:__________________________
Name: _______________________
Title:_______________________
CONSENT OF THE LIMITED LIABILITY COMPANY
[________________], L.L.C. (the "LIMITED LIABILITY COMPANY") hereby
certifies that the Limited Liability Company consents and agrees to cause to be
registered on the books and records of the Limited Liability Company the pledge
of the membership interests referenced above and further agrees that upon
receipt of written notice from the Pledgee that a default by the Interest Owner
under the terms of any of the loan documents between the Interest Owner and the
Pledgee has occurred and is continuing, the Limited Liability Company shall pay
and remit to the Pledgee all distributions and other amounts payable to the
Interest Owner upon redemption, termination and dissolution of the Limited
Liability Company or otherwise.
[_______________________], L.L.C.
By: The Delta Queen Steamboat Co.,
a Managing Member
By: __________________________
Name: Jordan B. Allen
Title: Senior Vice President
By: DQSB II, Inc., a Managing Member
By: __________________________
Name: Jordan B. Allen
Title: Senior Vice President
<PAGE> 20
Annex A
to
Pledge Instruction
Form of Initial Transaction Statement
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Reference is hereby made to that certain Limited Liability Company
Pledge Agreement dated as of March 26, 1997 (the "PLEDGE") between DQSB II,
Inc.(the "INTEREST OWNER"), a member of [________________], L.L.C. (the "LIMITED
LIABILITY COMPANY"), and The Chase Manhattan Bank, as Agent, as pledgee (the
"PLEDGEE").
On ______________ __, 1997, the Limited Liability Company caused the
pledge (or assignment) of the 1% membership interest ("MEMBERSHIP INTEREST") by
the Interest Owner in favor of the Pledgee to be registered on the books and
records of the Limited Liability Company. Except for the pledge in favor of the
Pledgor, to the knowledge of the Limited Liability Company, there are no liens,
restrictions or adverse claims (as to which the Limited Liability Company has a
duty under Section 8-403 of the Uniform Commercial Code) to which the Membership
Interest is, or may be subject, as of the date hereof.
The name of the owner of record of the Membership Interest is the
Interest Owner. The address of the Interest Owner is set forth above. The
taxpayer identification number of the Interest Owner is 36-4133147.
The name of the registered pledgee of the Membership Interest is The
Chase Manhattan Bank, as Agent, for its benefit and the benefit of Holders of
Secured Obligations. The address of the Pledgee is set forth above. The
taxpayer identification number of the Pledgee is 13-4994650.
<PAGE> 21
THIS STATEMENT IS MERELY A RECORD OF THE RIGHTS OF THE ADDRESSEES AS
OF THE TIME OF ITS ISSUANCE. DELIVERY OF THIS STATEMENT, OF ITSELF, CONFERS NO
RIGHTS ON THE RECIPIENTS. THIS STATEMENT IS NEITHER A NEGOTIABLE INSTRUMENT NOR
A SECURITY.
[_______________________], L.L.C.
By: The Delta Queen Steamboat Co.,
a Managing Member
By: __________________________
Name: Jordan B. Allen
Title: Senior Vice President
By: DQSB II, Inc., a Managing Member
By: __________________________
Name: Jordan B. Allen
Title: Senior Vice President
<PAGE> 1
EXHIBIT 4.(ii)(a)(40)
SECURITY AGREEMENT
SECURITY AGREEMENT ("Agreement"), dated as of March 26, 1997, is made
and entered into by and between DQSB II, INC., a Delaware corporation (the
"Company") and THE CHASE MANHATTAN BANK, a New York banking corporation, as
agent (hereinafter in such capacity, the "Agent") for itself and the Lenders (as
referred to and defined in the "Credit Agreement" described below).
WHEREAS, THE DELTA QUEEN STEAMBOAT CO.("Borrower"), AMERICAN CLASSIC
VOYAGES, INC., certain financial institutions and each other financial
institution which from time to time becomes a party thereto in accordance with
Section 11.02(a) (together with their respective successors and assigns,
individually, a "Lender" and, collectively, the "Lenders") and the Agent are
parties to that certain Third Amended and Restated Credit Agreement, dated as of
April 22, 1996, as amended (as further amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement");
WHEREAS, the Company has become a party to that certain Guaranty dated
as of August 3, 1993, as amended (as the same may be amended, modified or
supplemented from time to time, the "Guaranty"), pursuant to that certain Master
Assumption Agreement and Fourth Master Amendment to Collateral Documents of even
date herewith in favor of the Agent for the benefit of itself and the Lenders,
pursuant to which Guaranty the Company has guaranteed the payment and
performance of the Guaranteed Obligations (as defined in the Guaranty) to the
Agent and the Lenders;
WHEREAS, it is a condition precedent to the Lenders' making any loans
or otherwise extending credit to the Borrower under the Credit Agreement that
the Company execute and deliver to the Agent, for the benefit of the Lenders and
the Agent, a security agreement in substantially the form hereof; and
WHEREAS, the Company wishes to grant security interests in favor of
the Agent, for the benefit of the Lenders and the Agent, as herein provided;
NOW, THEREFORE, in connection of the promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions. All capitalized terms used herein without
definitions shall have the respective meanings provided therefor in the
Credit Agreement. The term "Uniform Commercial Code" shall mean the
Uniform Commercial Code as the same may, from time to time, be in effect in
the State of Louisiana; and terms defined therein shall be used herein as
defined therein; provided, however, in the event that by reason of
mandatory provisions of law, any and all of the attachment, perfection, or
priority of the security interest created hereunder is governed by the
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Uniform Commercial Code as in effect in any jurisdiction other than the
State of Louisiana, the term "Uniform Commercial Code" shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for the
purposes of the provisions hereof related to such attachment, perfection or
priority and for purposes of definitions related as such provisions.
Section 2. Grant of Security Interest.
(a) The Company hereby grants to the Agent, for the benefit of the
Lenders and the Agent, to secure the payment and performance in full of all of
the Guaranteed Obligations, a security interest in and so pledges and assigns to
the Agent, for the benefit of the Lenders and the Agent, the following
properties, assets and rights of the Company, wherever located, whether now
owned or hereafter acquired or arising, and all proceeds and products thereof
(all of the same being hereinafter called the "Collateral"):
All personal and fixture property of every kind and nature including
without limitation all furniture, fixtures, machinery, equipment, raw
materials, inventory, goods, accounts, contract rights, rights to the
payment of money, charter hire, earnings and freight, insurance refund
claims and all other insurance claims and proceeds, tort claims, chattel
paper, documents, instruments (including certificated securities), deposit
accounts and all general intangibles including, without limitation, all
uncertificated securities, tax refund claims, license fees, patents, patent
applications, trademarks, trademark applications, trade names, copyrights,
copyright applications, rights to sue and recover for past infringement of
patents, trademarks and copyrights, technology, know-how and processes,
computer programs, computer software, engineering drawings, service marks,
customer lists, goodwill, and all licenses, permits agreements of any kind
or nature pursuant to which the Company possesses, uses or has authority to
posses or use property (whether tangible or intangible) of others or which
others possess, use or have authority to possess or use property (whether
tangible or intangible) of the Company, and all recorded data of any kind
or nature, regardless of the medium of recording including, without
limitation, all software, writings, plans, specifications and schematics.
(b) Pursuant to the terms hereof, the Company has endorsed, assigned
and delivered to the Agent all negotiable or nonnegotiable instruments
(including certificated securities) and chattel paper pledged by it hereunder,
together with instruments of transfer or assignment duly executed in blank as
the Agent may have specified. In the event that the Company shall, after the
date of this Agreement, acquire any other negotiable or nonnegotiable
instruments (including certificated securities) or chattel paper to be pledged
by it hereunder, the Company shall forthwith endorse, assign and deliver the
same to the Agent, accompanied by such instruments of transfer or assignment
duly executed in blank as the Agent may from time to time specify. To the
extent that any securities are uncertificated, appropriate book-entry transfers
reflecting the pledge of such securities created hereby have been or, in the
case of uncertificated securities hereafter acquired by the Company, will at the
time of such acquisition be, duly made for the account of the Agent or one or
more nominees of the
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<PAGE> 3
Agent with the issuer of such securities or other appropriate book-entry
facility or financial intermediary, with the Agent having at all times the right
to obtain definitive certificates (in the Agent's name or in the name of one or
more nominees of the Agent) where the issuer customarily or otherwise issues
certificates, all to be held as Collateral hereunder. The Company hereby
acknowledges that the Agent may, in its discretion, appoint one or more
financial institutions to act as the Agent's agent in holding in custodial
account instruments or other financial assets in which the Agent on behalf of
the Lenders and the Agent is granted a security interest hereunder, including,
without limitation, certificates of deposit and other instruments evidencing
short-term obligations.
(c) Notwithstanding the foregoing provisions of this Section 2, such
grant of security interest shall not extend to, and the term "Collateral" shall
not include, any chattel paper and general intangibles which are now or
hereafter held by the Company as licensee, lessee or otherwise, to the extent
that (i) such chattel paper and general intangibles are not assignable or
capable of being encumbered as a matter of law or under the terms of the
license, lease or other agreement applications thereto (but solely to the extent
that any such restriction shall be enforceable under applicable law), without
the consent of the licensor or lessor thereof or other applicable party thereto
and (ii) such consent has not been obtained; provided, however, that the
foregoing grant of security interest shall extend to, and the term "Collateral"
shall include, (A) any and all proceeds of such chattel paper and general
intangibles to the extent that the assignment or encumbering of such proceeds is
not so restricted and (B) upon any such licensor, lessor or other applicable
party consent with respect to any otherwise excluded chattel paper or general
intangibles being obtained, thereafter such chattel paper or general intangibles
as well as any and all proceeds thereof that might have theretofore have been
excluded from such grant of a security interest and the term "Collateral".
Section 3. Title to Collateral, etc. The Company is the owner of the
Collateral free from any adverse lien, security interest or other encumbrance,
except for the security interest created by this Agreement and other liens
permitted by the Credit Agreement. None of the Collateral constitutes, or is
the proceeds of, "farm products" as defined in Section 9-109(3) of the Uniform
Commercial Code of the State of Louisiana. None of the account debtors in
respect of any accounts, chattel paper or general intangibles and none of the
obligors in respect of any instruments included in the Collateral is a
Governmental Authority subject to the Federal Assignment of Claims Act.
Section 4. Continuous Perfection. The Company's place of business
or, if more than one, chief executive office is indicated on the Perfection
Certificate delivered to the Agent herewith (the "Perfection Certificate"). The
Company will not change the same, or the name, identity or corporate structure
of the Company in any manner, without providing at least 30 days' prior written
notice to the Agent. The Collateral other than the Delta Queen and the
Mississippi Queen and any Collateral located thereon, to the extent not
delivered to the Agent pursuant to Section 2(b), will be kept at those locations
listed on the Perfection Certificate and the Company will not remove the
Collateral from such locations, except with respect to inventory as required in
the ordinary course of business, without providing at least 30 days' prior
written notice to the Agent.
Section 5. No Liens. Except for the security interest herein granted
and liens permitted by the Credit Agreement, the Company shall be the owner of
the Collateral free from any lien, security interest or other encumbrance, and
the Company shall
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<PAGE> 4
defend the same against all claims and demands of all Persons at any time
claiming the same or any interests therein adverse to the Agent or any of the
Lenders. The Company shall not pledge, mortgage or create, or suffer to exist a
security interest in the Collateral in favor of any Person other than Agent, for
the benefit of the Lenders and the Agent, except for liens permitted by the
Credit Agreement.
Section 6. No Transfers. Subject to the provisions of the Credit
Agreement, the Company will not sell or offer to sell or otherwise transfer the
Collateral or any interest therein except for sales or other dispositions of
obsolescent items of equipment in the ordinary course of business consistent
with past practices.
Section 7. Insurance.
(a) Subject to the provisions of the Credit Agreement, the Company
will maintain with financially sound and reputable insurers insurance with
respect to its properties and business against such casualties and contingencies
as shall be in accordance with general practices of businesses engaged in
similar activities in similar geographic areas. Such insurance shall be in such
amounts that the Company will not be deemed a co-insurer under applicable
insurance laws, regulations and policies and otherwise shall be in such amounts,
contain such terms, be in such forms and be for such periods as may be
reasonably satisfactory to the Agent. In addition, all such insurance shall be
payable to the Agent as loss payee under a "standard mortgage" loss payee clause
for the benefit of the Lenders and the Agent. Without limiting the foregoing,
the Company will (i) maintain all such worker's compensation or similar
insurance as may be required by law and (ii) maintain, in amounts and with
deductibles equal to those generally maintained by businesses engaged in similar
activities in similar geographic areas, general public liability insurance
against claims of bodily injury, death or property damage occurring, on, in or
about the properties of the Company and business interruption insurance.
(b) Subject to the provisions of the Credit Agreement, the proceeds
of any casualty insurance in respect of the casualty loss of any of the
Collateral shall, subject to the rights, if any, of other parties with a prior
interest in the property covered thereby, (i) so long as no Event of Default has
occurred and is continuing and to the extent that the amount of such proceeds is
less than $1,000,000, be disbursed to the Company for direct application by the
Company solely to the repair or replacement of the Company's property so damaged
or destroyed and (ii) in all other circumstances, be held by the Agent as cash
collateral for the Guaranteed Obligations. The Agent may, at its sole option,
disburse from time to time all or any part of such proceeds so held as cash
collateral, upon such terms and conditions as the Agent may reasonably
prescribe, for direct application by the Company solely to the repair or
replacement of the Company's property so damaged or destroyed, or the Agent may
apply all or any part of such proceeds to the Guaranteed Obligations.
(c) All policies of insurance shall provide for at least thirty days'
prior written cancellation notice to the Agent. In the event of failure by the
Company to provide and maintain insurance as herein provided, the Agent may, at
its option, provide such insurance and charge the amount thereof to the Company
plus interest at the Default Rate as set forth in the Credit Agreement. The
Company shall furnish the Agent
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<PAGE> 5
with certificates of insurance and policies evidencing compliance with the
foregoing insurance provision.
Section 8. Maintenance of Collateral; Compliance with Law. The
Company will keep the Collateral in good order and repair and will not use the
same in violation of law or any policy of insurance thereon. The Agent, or its
designee, may inspect the Collateral at any reasonable time, wherever located.
Section 9. Collateral Protection Expenses; Preservation of
Collateral.
(a) In its discretion, the Agent may, upon ten (10) days' prior
written notice to the Company so long as no Event of Default has occurred and is
continuing (and otherwise without prior notice), discharge taxes and other
encumbrances at any time levied or placed on any of the Collateral, make repairs
thereto and pay any necessary filing fees. The Company agrees to reimburse the
Agent on demand for any and all expenditures so made. The Agent shall have no
obligation to the Company to make any such expenditures, nor shall the making
thereof relieve the Company of any default.
(b) Anything herein to the contrary notwithstanding, the Company
shall remain liable under each contract or agreement comprised in the Collateral
to be observed or performed by the Company thereunder. Neither the Agent nor
any Lender shall have any obligation or liability under any such contract or
agreement by reason of or arising out of this Agreement or the receipt by the
Agent or any Lender of any payment relating to any of the Collateral, nor shall
the Agent or any Lender be obligated in any manner to perform any of the
obligations of the Company under or pursuant to any such contract or agreement,
to make inquiry as to the nature or sufficiency of any payment received by the
Agent or any Lender in respect of the Collateral or as to the sufficiency of any
performance by any party under any such contract or agreement, to present or
file any claim, to take any action to enforce any performance or to collect the
payment of any amounts which may have been assigned to the Agent or to which the
Agent or any Lender may be entitled at any time or times. The Agent's sole duty
with respect to the custody, safe keeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Uniform Commercial Code
or otherwise, shall be to deal with such Collateral in the same manner as the
Agent deals with similar property for its own account.
Section 10. Securities and Deposits. If an Event of Default shall
have occurred and be continuing, (i) the Agent may at any time, at its option,
transfer to itself or any nominee any securities constituting Collateral,
receive any income thereon and hold such income as additional Collateral or
apply it to the Guaranteed Obligations, and (ii) whether or not any Guaranteed
Obligations are due, the Agent may demand, sue for, collect, or make any
settlement or compromise which it deems desirable with respect to the
Collateral. Regardless of the adequacy of Collateral or any other security for
the Guaranteed Obligations, any deposits or other sums at any time credited by
or due from the Agent or any Lender to the Company may at any time be applied to
or set off against any of the Guaranteed Obligations.
Section 11. Notification to Account Debtors and Other Obligors. If
an Event of Default shall have occurred and be continuing, the Company shall, at
the request of the
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<PAGE> 6
Agent, notify account debtors on accounts, chattel paper and general intangibles
of the Company and obligors on instruments for which the Company is an obligee
of the security interest of the Agent in any account, chattel paper, general
intangible or instrument and that payment thereof is to be made directly to the
Agent or to any financial institution designated by the Agent as the Agent's
agent therefor, and the Agent may itself, if an Event of Default shall have
occurred and be continuing, without notice to or demand upon the Company, so
notify account debtors and obligors. After the making of such a request or the
giving of any such notification, the Company shall hold any proceeds of
collection of accounts, chattel paper, general intangibles and instruments
received by the Company as trustee for the Agent, for the benefit of the Lenders
and the Agent, without commingling the same with other funds of the Company and
shall turn the same over to the Agent in the identical form received, together
with any necessary endorsements or assignments. The Agent shall apply the
proceeds of collection of accounts, chattel paper, general intangibles and
instruments received by the Agent to the Guaranteed Obligations, such proceeds
to be immediately entered after final payment in cash or solvent credits of the
items giving rise to them.
Section 12. Further Assurances. The Company, at its own expense,
shall do, make, execute and deliver all such additional and further acts,
things, deeds assurances and instruments as the Agent may require more
completely to vest in and assure to the Agent and the Lenders their respective
rights hereunder or in any of the Collateral, including, without limitation, (a)
executing, delivering and, where appropriate, filing financing statements and
continuation statements under the Uniform Commercial Code, (b) obtaining
governmental and other third party consents and approvals, including without
limitation any consent of any licensor, lessor or other applicable party
referred to in Section 2(c), (c) obtaining waivers from mortgagees and landlords
and (d) taking all actions required by Sections 8-313 and 8-321 of the Uniform
Commercial Code, as applicable in each relevant jurisdiction, with respect to
certificated and uncertificated securities.
Section 13. Power of Attorney.
(a) The Company hereby irrevocably constitutes and appoints the Agent
and any officer or agent thereof, with full power of substitution, as its true
and lawful attorneys-in-fact with full irrevocable power and authority in the
place and stead of the Company or in the Agent's own name, for the purpose of
carrying out the terms of this Agreement, to take any and all appropriate action
and to execute any and all documents and instruments that may be necessary or
desirable to accomplish the purposes of this Agreement and, without limiting the
generality of the foregoing, hereby gives said attorneys the power and right, on
behalf of the Company, without notice to or assent by the Company, to do the
following:
(i) upon the occurrence and during the continuance of an Event of
Default, generally to sell, transfer, pledge, make any agreement with
respect to or otherwise deal with any of the Collateral in such manner as
is consistent with the Uniform Commercial Code and as fully and completely
as though the Agent were the absolute owner thereof for all purposes, and
to do at the Company's expense, at any time, or from time to time, all acts
and things which the Agent deems necessary to protect, preserve or realize
upon the Collateral and the Agent's security interest
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<PAGE> 7
therein, in order to effect the intent of this Agreement, all as fully and
effectively as the Company might do, including, without limitation, (A) the
filing and prosecuting of registration and transfer applications with the
appropriate federal or local agencies or authorities with respect to
trademarks, copyrights and patentable inventions and processes, (B) upon
written notice to the Company, the exercise of voting rights with respect
to voting securities, which rights may be exercised, if the Agent so
elects, with a view to causing the liquidation in a commercially reasonable
manner of assets of the issuer of any such securities and (C) the
execution, delivery and recording, in connection with any sale or other
disposition of any Collateral, of the endorsements, assignments or other
instruments of conveyance or transfer with respect to such Collateral; and
(ii) to file such financing statements with respect hereto, with or
without the Company's signature, or a photocopy or carbon copy of this
Agreement or of a signed financing statement in substitution for a
financing statement, as the Agent may deem appropriate and to execute in
the Company's name such financing statements and continuation statements
which may require the Company's signature.
(b) To the extent permitted by law, the Company hereby ratifies all
that said attorneys shall lawfully do or cause to be done by virtue hereof.
This power of attorney is a power coupled with an interest and shall be
irrevocable.
(c) The powers conferred on the Agent hereunder are solely to protect
the interests of the Agent and the Lenders in the Collateral and shall not
impose any duty upon the Agent to exercise any such powers. The Agent shall be
accountable only for the amounts that it actually receives as a result of the
exercise of such powers and neither it nor any of its officers, directors,
employees or agents shall be responsible to the Company for any act or failure
to act, except for the Agent's own gross negligence or willful misconduct.
Section 14. Remedies. If an Event of Default shall have occurred and
be continuing, the Agent may, without notice to or demand upon the Company,
declare this Agreement to be in default, and the Agent shall thereafter have in
any jurisdiction in which enforcement hereof is sought, in addition to all other
rights and remedies, the rights and remedies of a secured party under the
Uniform Commercial Code, including, without limitation, the right to take
possession of the Collateral, and for that purpose the Agent may, so far as the
Company can give authority therefor, enter upon any premises on which the
Collateral may be situated and remove the same therefrom. The Agent may require
the Company to assemble all or any part of the Collateral at such location or
locations within the state(s) of the Company's principal office(s) or at such
other locations as the Agent may designate. Unless the Collateral is perishable
or threatens to decline speedily in value or is of a type customarily sold on a
recognized market, the Agent shall give to the Company at least ten (10)
Business Days' prior written notice of the time and place of any public sale of
Collateral or of the time after which any private sale or any other intended
disposition is to be made. The Company hereby acknowledges that ten (10)
Business Days' prior written notice of such sale or sales shall be reasonable
notice. In addition, the Company waives any and all rights that it may have to
a judicial hearing in advance of the enforcement of any of the Agent's rights
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<PAGE> 8
hereunder, including, without limitation, its right following an Event of
Default to take immediate possession of the Collateral and to exercise its
rights with respect thereto. To the extent that any of the Guaranteed
Obligations are to be paid or performed by a Person other than the Company, the
Company waives and agrees not to assert any rights or privileges which it may
have under Section 9-112 of the Uniform Commercial Code.
Section 15. Special Louisiana Provisions. The Company hereby
agrees as follows:
(a) For purposes of Louisiana executory process, the Company
acknowledges the Guaranteed Obligations secured hereby, whether now existing or
to arise hereafter, and confesses judgment thereon. Upon the occurrence of an
Event of Default and at any time thereafter so long as the same shall be
continuing, and in addition to all other rights and remedies granted the Agent
hereunder, it shall be lawful for and the Company hereby authorizes the Agent
without making a demand or putting the Company in default, a putting in default
being expressly waived, to cause all and singular the Collateral to be seized
and sold after due process of law, the Company waiving the benefit of any and
all laws or parts of laws relative to the appraisement of property seized and
sold under executory process or other legal process, and consenting that the
Collateral be sold without appraisement, either in its entirety or in lots or
parcels, as the Agent may determine, to the highest bidder for cash or on such
other terms as the plaintiff in such proceedings may direct. In addition, the
Agent shall have all of the rights and remedies available to it under this
Agreement or under the Louisiana Commercial Laws (Louisiana Revised Statutes,
Title 10), then in effect, and under Chapter 9 of the Louisiana Commercial Laws,
then in effect (La. R.S. 10:9-101 et seq.).
(b) the Company hereby waives:
(i) the benefit of appraisement provided for in Articles 2332,
2336, 2723 and 2724 of the Louisiana Code of Civil Procedure and all
other laws conferring the same;
(ii) the demand and three (3) days' notice of demand as provided in
Articles 2639 and 2721 of the Louisiana Code of Civil Procedure;
(iii) the notice of seizure provided by Articles 2293 and 2721 of
the Louisiana Code of Civil Procedure; and
(iv) the three (3) days' delay provided for in Articles 2331 and
2722 of the Louisiana Code of Civil Procedure.
(c) the Company expressly authorizes and agrees that the Agent
shall have the right to appoint a keeper of the Collateral, or any part thereof,
pursuant to the terms and provisions of La. R.S. 9:5136.
Section 16. No Waiver, etc. The Company waives demand, notice,
protest, notice of acceptance of this Agreement, notice of loans made, credit
extended, Collateral received or delivered or other action taken in reliance
hereon and all other
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<PAGE> 9
demands and notices of any description. With respect to both the Guaranteed
Obligations and the Collateral, the Company assents to any extension or
postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of Collateral, to the addition or release of
any party or Person primarily or secondarily liable, to the acceptance of
partial payment thereon and the settlement, compromising or adjusting of any
thereof, all in such manner and at such time or times as the Agent may deem
advisable. The Agent shall have no duty as to the collection or protection of
the Collateral or any income thereon, nor as to the preservation of rights
against prior parties, nor as to the preservation of any rights pertaining
thereto beyond the safe custody thereof as set forth in Section 9(b). The Agent
shall not be deemed to have waived any of its rights upon or under the
Guaranteed Obligations or the Collateral unless such waiver shall be in writing
and signed by the Agent with the consent of the Required Lenders. No delay or
omission on the part of the Agent in exercising any right shall operate as a
waiver of such right or any other right. A waiver on any one occasion shall not
be construed as a bar to or waiver of any right on any future occasion. All
rights and remedies of the Agent with respect to the Guaranteed Obligations or
the Collateral, whether evidenced hereby or by any other instrument or papers,
shall be cumulative and may be exercised singularly, alternatively, successively
or concurrently at such time or at such times as the Agent deems expedient.
Section 17. Marshalling. Neither the Agent nor any Lender
shall be required to marshal any present or future collateral security
(including but not limited to this Agreement and the Collateral) for, or other
assurances of payment of, the Guaranteed Obligations or any of them or to resort
to such collateral security or other assurances of payment in any particular
order, and all of the rights of the Agent hereunder and of the Agent or any
Lender in respect of such collateral security and other assurances of payment
shall be cumulative and in addition to all other rights, however existing or
arising. To the extent that it lawfully may, the Company hereby agrees that it
will not invoke any law relating to the marshalling of collateral which might
cause delay in or impede the enforcement of the Agent's rights under this
Agreement or under any other instrument creating or evidencing any of the
Guaranteed Obligations or under which any of the Guaranteed Obligations is
outstanding or by which any of the Guaranteed Obligations is secured or payment
thereof is otherwise assured, and, to the extent that it lawfully may, the
Company hereby irrevocably waives the benefits of all such laws.
Section 18. Proceeds of Dispositions; Expenses. The Company shall
pay to the Agent on demand any and all expenses, including reasonable attorneys'
fees and disbursements, incurred or paid by the Agent in protecting, preserving
or enforcing the Agent's rights under or in respect of any of the Guaranteed
Obligations or any of the Collateral. After deducting all of said expenses, the
residue of any proceeds of collection or sale of the Guaranteed Obligations or
Collateral shall, to the extent actually received in cash, be applied to the
payment of the Guaranteed Obligations in such order or preference as the Agent
may determine in its sole discretion proper allowance being made for any
Guaranteed Obligations not then due. Upon the indefeasible payment and
satisfaction in full of all of the Guaranteed Obligations and the termination of
all financial arrangement among the Borrower and the Lenders, and after making
any payments required by Section 9-504(1)(c) of the Uniform Commercial Code, any
excess shall be returned to the Company, and the Company shall remain liable for
any deficiency in the payment of the Guaranteed Obligations.
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Section 19. Agent. The Agent shall exercise its rights and
remedies hereunder in accordance with the provisions of the Credit Agreement,
including without limitation the provisions for acting upon the request or at
the direction of one or more of the Lenders.
Section 20. Overdue Amounts. Until paid, all amounts due and
payable by the Company hereunder shall be a debt secured by the Collateral and
shall bear, whether before or after judgment, interest at the Default Rate as
set forth in the Credit Agreement.
Section 21. GOVERNING LAW. THIS AGREEMENT AND ANY DISPUTE
AMONG THE COMPANY, THE BORROWER, THE PARENT AND THE AGENT, ANY LENDER 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, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE,
SHALL BE INTERPRETED AND RESOLVED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
LOUISIANA.
Section 22. 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 COMPANY AGREES THAT THE AGENT OR ANY
LENDER SHALL HAVE THE RIGHT TO PROCEED AGAINST THE COMPANY OR ITS PROPERTY IN A
COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION
OVER THE COMPANY OR (2) REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
GUARANTEED OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN
FAVOR OF SUCH PERSON. THE COMPANY AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE
COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO REALIZE ON THE
COLLATERAL OR ANY OTHER SECURITY FOR THE GUARANTEED OBLIGATIONS OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH PERSON. THE COMPANY WAIVES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF
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<PAGE> 11
THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED IN THIS
SUBSECTION.
(C) SERVICE OF PROCESS. THE COMPANY WAIVES PERSONAL SERVICE OF ANY
PROCESS UPON IT AND, AS ADDITIONAL SECURITY FOR THE GUARANTEED OBLIGATIONS,
IRREVOCABLY APPOINTS THE PRENTICE-HALL CORPORATION SYSTEM, INC. THE COMPANY'S
REGISTERED AGENT, WHOSE ADDRESS IS 1013 CENTRE ROAD, WILMINGTON, DELAWARE 19805,
AS THE COMPANY'S AGENT FOR THE PURPOSE OF ACCEPTING SERVICE OF PROCESS ISSUED BY
ANY COURT. THE COMPANY 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, CONNECTED 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 HERETO 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 COMPANY 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
GUARANTEED 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.
Section 23. Miscellaneous. The headings of each section of
this Agreement are for convenience only and shall not define or limit the
provisions thereof. This Agreement and all rights and obligations hereunder
shall be binding upon the Company and its respective successors and assigns, and
shall inure to the benefit of the Agent, the Lenders and their respective
successors and assigns. If any term of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity of all other terms hereof shall
in no way be affected thereby, and this Agreement shall be construed and be
enforceable as if such invalid, illegal or unenforceable term had not been
included herein. The Company acknowledges receipt of a copy of this Agreement.
-11-
<PAGE> 12
Section 24. Notice, Etc. The Company appoints Borrower as its agent
to receive notices and other communications under this Agreement. Any such
notice or communication received by Borrower under this Agreement shall be
deemed to have been received by the Company. All such notices to Borrower shall
be given in the manner and to the addresses set forth in the Credit Agreement.
-12-
<PAGE> 13
IN WITNESS WHEREOF, intending to be legally bound, the Company
has caused this Agreement to be duly executed as of the date first above
written.
DQSB II, INC.
By: \s\ Jordan B. Allen
-------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
Accepted:
THE CHASE MANHATTAN BANK, as Agent
By: /s/ Lisa D. Benitez
-------------------------
Title: Vice President
-13-
<PAGE> 14
CERTIFICATE OF ACKNOWLEDGMENT
STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 26th day of March, 1997, personally appeared Jordan B. Allen
to me known personally, and who, being by me duly sworn, deposes and says that
he is the Senior Vice President of DQSB II, Inc., and that said instrument was
signed and sealed on behalf of said corporation by authority of its Board of
Directors, and said Senior Vice President acknowledged said instrument to be
the free act and deed of said corporation.
/s/ Theresa H. Reed-Adams
---------------------------
Notary Public
My Commission Expires: 11/22/98
-14-
<PAGE> 15
PERFECTION CERTIFICATE
DQSB II, Inc., a Delaware corporation, hereby certifies that
its chief executive office is in New Orleans, Louisiana.
Date: March 26, 1997
DQSB II, INC.
\s\ Jordan B. Allen
By: -------------------------
Name: Jordan B. Allen
Title: Senior Vice President
-15-
<PAGE> 1
EXHIBIT 4.(ii)(c)(11)
Contract No. MA-13049
ASSUMPTION AND SUPPLEMENT NO. 1
TO FIRST PREFERRED SHIP MORTGAGE
BY AND AMONG
GREAT AQ STEAMBOAT, L.L.C.
AS ASSUMING SHIPOWNER
ROBIN STREET WHARF
1380 PORT OF NEW ORLEANS PLACE
NEW ORLEANS, LOUISIANA 70130-1890
INTEREST ASSUMED 100%
GREAT AQ STEAMBOAT CO.,
ROBIN STREET WHARF
1380 PORT OF NEW ORLEANS PLACE
NEW ORLEANS, LOUISIANA 70130-1890
INTEREST CONVEYED 100%
AND
THE UNITED STATES OF AMERICA
REPRESENTED BY THE SECRETARY OF TRANSPORTATION, ACTING BY
AND THROUGH THE MARITIME ADMINISTRATOR
400 SEVENTH STREET, S.W.
WASHINGTON, D.C. 20590
$58,165,000.00
EFFECTIVE AS OF DECEMBER 31, 1996
AMERICAN QUEEN
O.N. 1030765
<PAGE> 2
ASSUMPTION AND SUPPLEMENT NO. 1
TO
FIRST PREFERRED SHIP MORTGAGE
This Assumption and Supplement No. 1 to First Preferred Ship Mortgage
("Supplement No. 1"), relating to the AMERICAN QUEEN, Official No. 1030765 (the
"Vessel"), effective as of December 31, 1996, is made by and among Great AQ
Steamboat, L.L.C., a Delaware limited liability company, located at Robin
Street Wharf, 1380 Port of New Orleans Place, New Orleans, Louisiana 70130-1890
(the "Shipowner"), Great AQ Steamboat Co., Robin Street Wharf, 1380 Port of New
Orleans Place, New Orleans, Louisiana 70130-1890 (the "Assignor"), to the United
States of America, represented by the Secretary Transportation, acting by and
through the Maritime Administrator, 400 Seventh Street, S.W., Washington, D.C.
20590 (the "Secretary" or "Mortgagee").
WITNESSETH:
WHEREAS, on August 24, 1995, the Assignor, executed and delivered a
First Preferred Ship Mortgage to the Mortgagee (the "Mortgage"), pursuant to
which the Original Shipowner mortgaged to the Mortgagee the Vessel listed in
said Mortgage as security for, among other things, payment of the principal of
and interest on the United States Government Guaranteed Ship Financing
Obligations, consisting of 2005 Notes and 2020 Bonds (the "Obligations") issued
by the Assignor under the Indenture and to secure the payment of the principal
of and interest on the promissory note issued by the Assignor and delivered to
the Secretary originally on August 24, 1995 (the "Secretary's Note"), pursuant
to the terms and provisions of the Security Agreement dated August 24, 1995,
Contract No. MA-13048 (the "Security Agreement"); said Mortgage having been
recorded on August 24, 1995 in the Office of the United States Coast Guard
National Vessel Documentation Center, Falling Waters, West Virginia in Book NVDC
95-1, Page 179 at 3:05 p.m.; and
WHEREAS simultaneously with the delivery hereof, as a result of the
merger of the Assignor into the Shipowner and pursuant to operation of law, the
Assignor is transferring its assets, including its interest in the Vessel to the
Shipowner subject to the Mortgage, and the Shipowner is assuming all of the
covenants, promises, stipulations and agreements of the Assignor as stated in
the Mortgage; and
WHEREAS, the Shipowner and the Mortgagee have executed and delivered
the Modification and Assumption Agreement (the "Agreement"), the form of which
is attached hereto as Exhibit A, which, among other things, constitutes an
assumption of the Security Agreement; and
WHEREAS, pursuant to Endorsement No. 1 to the Secretary's Note, the
form of which is attached hereto as Exhibit B, the Shipowner has assumed the
Secretary's Note
2
<PAGE> 3
and obligations set forth therein, and has modified the method for calculation
of interest on the 2005 Notes; and
WHEREAS, the calculation of interest set forth in the Secretary's
Note, an exhibit to and a part of the Mortgage, has changed, and the Secretary
has required the Mortgage to be Supplemented in order to attach an Addendum to
the Secretary's Note (the "Addendum") which reflects the revised method of
calculating interest, a form of which is attached hereto as Exhibit C;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged and as security for the Guarantees and in order to secure the
payment of the above-mentioned interest on and principal of the Secretary's Note
and all other sums that may be secured by the Mortgage and the Security
Agreement, and to secure the due performance and observance of all agreements
and covenants in the Mortgage and Secretary's Note and herein contained, the
Shipowner hereby acknowledges and confirms that it has assumed and shall be
fully liable on a joint and several or solidary basis for all obligations of the
Assignor under the Mortgage and the Shipowner has granted, conveyed, mortgaged,
pledged, confirmed, assigned, transferred and set over, and by these presents
does grant, convey, mortgage, pledge, confirm, assign, transfer and set over,
unto the Mortgagee, the whole of the Vessel listed in the Recitals of this
Mortgage duly documented in the name of the Shipowner under the laws of the
United States, having its home port at the port of New Orleans, Louisiana,
together with all its engines, boilers, machinery, masts, boats, anchors,
cables, chains, rigging, tackle, apparel, furniture, capstans, outfit, tools,
pumps, pumping and other equipment and all other appurtenances thereto now or at
any time hereafter appertaining or belonging to and whether on board or not on
board and also any and all additions, improvements and replacements hereafter
made in or to the Vessel or in and to their equipment and appurtenances as
aforesaid, and the parties hereto further agree as follows:
SECTION 1. The Mortgagee hereby consents to the transfer of the
Vessel and all appurtenances thereto by the Assignor to the Shipowner, subject,
however, to the maintenance thereon of the lien of the Mortgage with first
priority and upon the due performance of the terms and conditions of this
Assumption.
SECTION 2. For all purposes, including U.S. Coast Guard record
keeping, the Shipowner shall be the owner of record of the Vessel and the
Shipowner agrees the Vessel shall be redocumented in its name as owner thereof
on the date hereof with her home port at New Orleans, Louisiana.
SECTION 3. The Shipowner hereby covenants promises and agrees (i) to
pay the unpaid principal of and interest on the Secretary's Note when the same
may be due and payable in accordance with and subject to the terms of the
Security Agreement, the Mortgage, and the Secretary's Note, and all other sums
which may be secured by the Mortgage, as assumed by this Supplement No. 1 and
the Security Agreement, and (ii) to observe each and every covenant, agreement
and condition of the Mortgage which by the terms thereof are to be performed or
observed by the Shipowner thereunder.
SECTION 4. The Mortgagee releases and discharges the Assignor from
each and every obligation to be performed by the Mortgagor under the Mortgage.
3
<PAGE> 4
SECTION 5. Assignor agrees that at any time and from time to time,
upon written request of the Shipowner, Assignor will promptly and duly execute
any and all such further action as the Shipowner may reasonably request in order
to obtain the full benefits of this Assignment and of the rights and powers
herein granted.
SECTION 6. The provisions of the Addendum, annexed hereto as Exhibit
C are incorporated herein by reference and a true copy of the form of the
Addendum is annexed hereto.
SECTION 7. For the purposes of 46 U.S.C. 31321(b)(3), the amount of
the direct or contingent obligations that are or may be secured by the Mortgage,
excluding interest, expenses and fees is the total amount of Fifty Eight Million
One Hundred and Sixty Five Thousand Dollars ($58,165,000.00) and the total
amount of the Secretary's Note on the date hereof is Fifty Eight Million One
Hundred and Sixty Five Thousand Dollars ($58,165,000.00) and, therefore, the
total amount of the Mortgage as assumed by this Supplement No. 1 is
$58,165,000.00 and interest (and premium, if any) and performance of mortgage
covenants. The date of maturity, June 2, 2020, remains unchanged and the
discharge amount is the same as the reduced total amount. The interest of the
Shipowner in the Vessel is 100%. The interest mortgaged with respect to the
Vessel is 100%. Nothing herein shall constitute a novation, release, termination
or reissuance of the Mortgage, or a novation of the indebtedness evidenced by
the Secretary's Note.
SECTION 8. All of the covenants and agreements on the part of the
Shipowner which are set forth in, and all the rights, privileges, powers and
immunities of the Mortgagee which are provided for in, the Mortgage and the
Security Agreement attached hereto are incorporated herein and shall apply to
the Shipowner with the same force and effect as though set forth at length in
this Supplement No. 1. Terms used herein and not otherwise defined herein are
used as defined in Schedule X attached to the Security Agreement.
SECTION 9. The execution and delivery of this instrument have been
duly authorized and all conditions and requirements necessary to make this
instrument a valid and binding agreement and to effect the assumption of the
Mortgage provided herein and to continue the Mortgage, as assumed by this
instrument, as a valid, binding and legal first preferred ship mortgage for the
security of the Secretary's Note, have been duly performed and complied with;
SECTION 10. The Mortgage is in all respects ratified and confirmed,
and all of the terms, provisions and conditions thereof shall be and remain in
full force and effect except as specifically amended hereby.
IN WITNESS WHEREOF, this instrument has been executed on the date below
4
<PAGE> 5
indicated and is effective as of the day and year first above written.
ASSIGNOR:
GREAT AQ STEAMBOAT CO., a Delaware
corporation
By: Great AQ Steamboat, L.L.C., a Delaware
limited liability company, successor by
merger to Great AQ Steamboat Co.
By: The Delta Queen Steamboat Co., a
Delaware corporation, a Managing
Member
By: /S/ Jordan B. Allen
---------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
By: DQSB II, Inc., a Delaware
corporation, a Managing Member
By: /S/ Jordan B. Allen
---------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
Date: March 25, 1997
SHIPOWNER:
GREAT AQ STEAMBOAT, L.L.C., a
Delaware limited liability company
By: The Delta Queen Steamboat Co., a
Delaware corporation, a Managing
Member
By: /S/ Jordan B. Allen
---------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
Date: March 25, 1997
5
<PAGE> 6
By: DQSB II, Inc., a Delaware corporation, a
Managing Member
By: /S/ Jordan B. Allen
------------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
Date: March 25, 1997
UNITED STATES OF AMERICA
SECRETARY OF TRANSPORTATION
By: Maritime Administrator, as Mortgagee
By: /S/ Joel C. Richard
--------------------------------
Secretary
Maritime Administrator
Date: March 26, 1997
ATTEST:
/S/ Patricia E. Byrne
- -------------------------------
Assistant Secretary
Maritime Administation
6
<PAGE> 7
ACKNOWLEDGMENTS
STATE OF ILLINOIS)
) SS.:
COUNTY OF COOK )
On this 25th day of March, 1997, before me personally appeared Jordan B.
Allen, known to me to be the person whose name is subscribed to the foregoing
instrument and who, being by me duly sworn, did depose and say that he is Senior
Vice President of The Delta Queen Steamboat Co. and DQSB II, Inc., the Managing
Members of GREAT AQ STEAMBOAT, L.L.C., a Delaware limited liability company,
successor by merger and operation of law to Great AQ Steamboat Co., a Delaware
corporation, and acknowledged to me that he executed the same on behalf of said
companies for the purposes and consideration therein expressed and as the free
and voluntary act and deed of himself and said companies.
/S/ Andria Sheldon
(SEAL) --------------------------
Notary Public
My commission expires: 4/28/00
STATE OF ILLINOIS)
) SS.:
COUNTY OF COOK )
On this 25th day of March, 1997, before me personally appeared Jordan
B. Allen, known to me to be the person whose name is subscribed to the
foregoing instrument and who, being by me duly sworn, did depose and say that
he is Senior Vice President of The Delta Queen Steamboat Co. and DQSB II, Inc.,
the Managing Members of GREAT AQ STEAMBOAT, L.L.C., a Delaware limited
liability company, and acknowledged to me that he executed the same on behalf
of said companies for the purposes and consideration therein expressed and as
the free and voluntary act and deed of himself and said companies.
/S/ Andria Sheldon
(SEAL) ---------------------------
Notary Public
My commission expires: 4/28/00
7
<PAGE> 8
DISTRICT OF COLUMBIA )
) SS.:
CITY OF WASHINGTON )
I, the undersigned, a Notary Public in and for the District of Columbia, do
hereby certify that Joel C. Richard, Maritime Administration, the United States
of America, personally appeared before me in said District, the aforesaid
officer being personally well known to me as the person who executed the
Assumption and Supplement No. 1 to First Preferred Ship Mortgage hereto annexed
and acknowledged the same to be his free act and deed as said officer on behalf
of the United States of America.
GIVEN under my hand and seal this 26th day of March, 1997.
/S/ Melinda M. Allen
---------------------------
Notary Public
(Notorial Stamp and Seal)
My Commission Expires: 6/14/01
8
<PAGE> 1
EXHIBIT 4.(ii)(c)(12)
MODIFICATION AND ASSUMPTION AGREEMENT
This MODIFICATION AND ASSUMPTION AGREEMENT ("Agreement") is entered into
March 25, 1997, effective as of December 31, 1996, among the following parties
(collectively, the "Parties"):
(i) THE UNITED STATES OF AMERICA ("United States"), represented by
the Secretary of Transportation, acting by and through the Maritime
Administrator ("Secretary");
(ii) Great AQ Steamboat, L.L.C. (the "Successor Shipowner"), which is the
successor, by merger with Great AQ Steamboat Co. (the "Original
Shipowner"), at 11:59 p.m. on December 31, 1996, (the Successor
Shipowner, after such merger being hereinafter referred to as the
"Shipowner");
(iii) The Bank of New York (the "Indenture Trustee"), appointed as
Indenture Trustee pursuant to the Trust Indenture (as hereinafter
defined).
WITNESSETH:
WHEREAS, on August 24, 1995, Original Shipowner issued obligations known as
United States Government Guaranteed Ship Financing Obligations, American Queen
Series (the "Obligations"), in the original aggregate principal amount of
$60,589,000.00 (the "Guarantee Transaction"); and
WHEREAS, the Original Shipowner and the Successor Shipowner agreed to
merge, with the Successor Shipowner as the surviving entity (the "Merger"), and,
as such, the Shipowner wishes to amend the documents in the Guarantee
Transaction as necessary to reflect the Merger.
NOW, THEREFORE, in consideration of the mutual rights and obligations set
forth herein and of other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the Parties hereby agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Certain Definitions. As used herein, each of the following
defined terms shall have the respective meaning set forth opposite such term:
(a) "Authorization Agreement" shall mean the Authorization Agreement dated
August 24, 1995 (Contract No. MA-13047), between the Secretary and the
Indenture Trustee, as modified and/or supplemented to date;
(b) "Depository Agreement" shall mean the Depository Agreement dated
August 24, 1995 (Contract No. MA-13051), among Shipowner, the
Secretary and the Indenture Trustee, as modified and supplemented to
date;
<PAGE> 2
(c) "First Mortgage" shall mean that certain First Preferred Ship Mortgage
(Contract No. MA-13049) dated as of August 24, 1995, from the Original
Shipowner to the Secretary and covering the AMERICAN QUEEN (Official
No. 1030765), as recorded with the United States Coast Guard National
Vessel Documentation Center in Preferred Mortgage Book No. NVDC 95-1,
Instrument No. 179 on August 24, 1995, at 3:05 p.m.;
(d) "Reserve Fund Agreement" shall mean the Title XI Reserve Fund and
Financial Agreement dated as of August 24, 1995, between the Shipowner
and the Secretary (Contract No. MA-13050), including without
limitation the General Provisions incorporated therein;
(e) "Secretary's Note" shall mean the Secretary's Note dated August 24,
1995, pursuant to the Security Agreement (as hereinafter defined) from
the Original Shipowner to the Secretary, as endorsed by the Shipowner
to date;
(f) "Security Agreement" shall mean the Security Agreement dated August 24,
1995 (Contract No. MA-13048), between the Shipowner and the United
States of America, as amended and/or supplemented to date; and
(g) "Trust Indenture" shall mean the Trust Indenture dated August 24,
1995, between the Shipowner and Indenture Trustee, including without
limitation the General Provisions incorporated therein, all as amended
and/or supplemented to date.
ARTICLE 2
SUPPLEMENTAL INDENTURE AND MODIFICATION OF DOCUMENTS
Section 2.01. Modification of Documents. Each of the Parties hereby agrees
that each of the following documents (collectively, the "Documents") is modified
as set forth herein, effective as of December 31, 1996 (the "Effective Date")
(or, if such Party is not a party to the document in question, consents to the
modification of such document by the parties thereto):
(i) the Trust Indenture;
(ii) the Authorization Agreement;
(iii) the Security Agreement;
(iv) the Reserve Fund Agreement; and
(v) the Depository Agreement.
Without limiting the foregoing, the Shipowner shall also execute and
deliver:
(A) the endorsement to the Notes and Bonds as set forth in Section 2.02(b)
below (as in the form of Exhibit A to this Agreement);
(B) Endorsement to Secretary's Note (in the form of Exhibit B to this
Agreement); and
2
<PAGE> 3
(C) Supplement No. 1 to the Mortgage (in the form of Exhibit C to this
Agreement).
Section 2.02(a). Substitution of Great AQ Steamboat, L.L.C. for Great AQ
Steamboat Co. The parties hereto agree that wherever Great AQ Steamboat Co.
appears in any of the Documents Great AQ Steamboat, L.L.C. shall be substituted
in lieu thereof unless the context otherwise so requires.
(b) Supplemental Indenture. This Agreement shall also be deemed to be a
supplement to the Indenture (this "Supplemental Indenture"). Effective as of
December 31, 1996, (i) the Shipowner assumes payment of principal of and
interest (and premium, if any) on the Outstanding Obligations issued under the
Indenture in accordance with the terms of the Obligations and of the Indenture;
(ii) the Shipowner assumes the performance of the agreements of the Original
Shipowner in the Indenture; and (iii) the Original Shipowner is hereby released
from any and all obligations under the Indenture. The Shipowner may exercise
every right and power of the Original Shipowner with the same effect as if the
Shipowner had been named as the Original Shipowner. Nothing herein shall
adversely affect the Indenture Trustee's own rights, duties or immunities under
the Indenture.
(c) The Obligations. The Obligations, of which $21,812,000.00 aggregate
principal amount of Floating Rate Notes due August 24, 2005 (the "Notes") are
Outstanding on the date hereof and $36,353,000.00 aggregate principal amount of
7.68% Sinking Fund Bonds due June 2, 2020 (the "Bonds") are Outstanding on the
date hereof, shall each, together with any obligation issued in replacement of
any of such Notes or Bonds, be endorsed by the Indenture Trustee with the
following:
"Great AQ Steamboat, L.L.C., a Delaware limited liability company, is
successor in interest to Great AQ Steamboat Co. Great AQ Steamboat, L.L.C.,
effective December 31, 1996, assumed all of the rights, duties and obligations
of Great AQ Steamboat Co. relating to this 2020 Bond (or 2005 Note, as
applicable)."
(d) The Authorization Agreement. Consistent with the provisions
contained in this Agreement, the Authorization Agreement is hereby amended to
reflect the succession of the Shipowner to the Original Shipowner.
(e) The Security Agreement.
(i) Section 2.16 of the Security Agreement shall be restated in its
entirety to read as follows: " (a) If the Shipowner is organized as a
general partnership, limited liability company or a joint venture, then for
so long as there is Outstanding any indebtedness to the United States of
America pursuant to Title XI of the Merchant Marine Act, 1936, as amended,
the partnership agreement, the limited liability company agreement, or
agreement constituting a joint venture, shall not be amended, modified, or
voluntarily terminated without the prior written consent of the Secretary;
3
<PAGE> 4
(b) in each event where any action by the LLC, any Member, or the
management of the LLC, results in dissolution of the LLC pursuant to the
LLC Agreement or governing law, each Member shall forthwith take all steps
necessary to reform and re-establish the LLC.";
(c) All existing and future Members of the Shipowner as a limited liability
company, are required to enter into an agreement with the Secretary, in
form and substance satisfactory to the Secretary, whereby each Member
agrees (i) that any amounts owed by the Shipowner to a Member in respect of
its Interest (as that or the equivalent term is used in the LLC Agreement)
shall be paid only to the extent such payment is permitted under Title XI
Reserve Fund and Financial Agreement; (ii) that in the event of default by
the Shipowner under the Security Agreement, the Member shall be
subordinated in its rights to receive any distribution; (iii) to
subordinate any rights to payments other than distributions, under any
agreements with the Shipowner other than the LLC Agreement (including
agreements of indemnification) to the Secretary's full recovery of any and
all amounts owed under the Secretary's Note and the Mortgage."
(ii) Section 6.01(b) of the Security Agreement is hereby amended by adding
the following:
"(10) Modification, amendment or termination of the Amended and Restated
Limited Liability Company Agreement dated as of January 2, 1997, without
the prior written consent of the Secretary.
(11) Any failure by the Members to immediately reform the LLC in the event
of dissolution of the LLC pursuant to the LLC Agreement or governing law."
Section 2.03. Ratification. Except as modified pursuant to Section 2.02
hereof, each of the Documents is ratified and confirmed and shall be, and
remain, in full force and effect.
ARTICLE 3
ASSUMPTION
Section 3.01. Assumption. As of the Effective Date, pursuant to the
Merger, the Shipowner assumes all of the Original Shipowner's rights,
privileges, duties and obligations set forth in the Documents, as amended
through the date hereof, including the payment of principal of (and premiums, if
any) and interest on the Outstanding Obligations in accordance with the terms of
the Obligations.
Section 3.02. Secretary's Consent. Effective as of the date set forth
above, the Secretary consents to the Supplemental Indenture and the modification
of the Documents as set forth in Article 2, and to the assumption by the
Shipowner as set forth above. The Secretary further approves the form of the
endorsement to the Notes and Bonds attached hereto as Exhibit A, to the form of
the Endorsement to the Secretary's
4
<PAGE> 5
Note, attached hereto as Exhibit B, and to the form of Supplement No. 1 to the
Mortgage, attached hereto as Exhibit C.
Section 3.03. Definitions. Terms used but undefined herein shall have the
meanings ascribed to them in Schedule X to the Security Agreement.
ARTICLE 4
MISCELLANEOUS
Section 4.01. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of each of the Parties and their respective
successors and assigns.
Section 4.02. Entire Agreement. This Agreement embodies the entire
agreement and understanding between the Parties relating to the subject matter
hereof and may not be amended, waived or discharged except by an instrument in
writing executed by the party against which enforcement of such amendment,
waiver or discharge is sought.
Section 4.03. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 4.04. No Waiver; Cumulative Remedies. No Party to this Agreement
shall, by any act, delay, omission or otherwise, be deemed to have waived any of
its rights or remedies hereunder and no waiver shall be valid unless in writing,
signed by all the Parties, and then only to the extent therein set forth. A
waiver by any Party of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which such Party would
otherwise have had on any future occasion. No failure to exercise nor any delay
in exercising on the part of such Party, any right, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies hereunder provided are cumulative and may be exercised
singly or concurrently, and are not exclusive of any rights and remedies
provided by law.
Section 4.05. Amendments. None of the terms or provisions of this
Agreement may be waived, altered, modified or amended except by an instrument in
writing, duly executed by each of the Parties.
Section 4.06. Governing Law. This Agreement is made under, and shall be
construed in accordance with, the laws of the United States and the laws of the
State of Louisiana.
Section 4.07. Consent to Jurisdiction. Shipowner consents to the
jurisdiction of the courts and service of process in federal district court for
the Eastern District of Louisiana.
Section 4.08. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts, when so executed, shall for all
purposes be
5
<PAGE> 6
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
IN WITNESS WHEREOF, this Modification and Assumption Agreement has been
duly executed by the Parties and is effective as of the day and year first
above written, as evidenced by their authorized signatures set forth below.
GREAT AQ STEAMBOAT, L.L.C., a Delaware
limited liability company
By: The Delta Queen Steamboat Co., a
Managing Member
By: /S/ Jordan B. Allen
--------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
By: DQSB II, Inc., a Delaware corporation, a
Managing Member
By: /S/ Jordan B. Allen
--------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
GREAT AQ STEAMBOAT, CO., a Delaware
corporation
By: Great AQ Steamboat, L.L.C., a
Delaware limited liability company,
successor by merger to Great AQ
Steamboat Co.
By: The Delta Queen Steamboat Co., a
Delaware corporation,
a Managing Member
By: /S/ Jordan B. Allen
-----------------------------
Name: Jordan B. Allen
Title: Senior Vice President
6
<PAGE> 7
By: DQSB II, Inc., a Delaware
corporation, a Managing Member
By: /S/ Jordan B. Allen
------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
UNITED STATES OF AMERICA
represented by the SECRETARY OF
TRANSPORTATION acting by and
through the MARITIME ADMINISTRATOR
By: /S/ Joel C. Richard
--------------------------------
Secretary
Maritime Administrator
ATTEST:
/S/ Patricia E. Byrne
- --------------------------
Assistant Secretary
Maritime Administation
THE BANK OF NEW YORK
By: /S/ Mary Lagumina
-------------------------------
Indenture Trustee
7
<PAGE> 8
ACKNOWLEDGMENTS
STATE OF ILLINOIS )
) SS.:
COUNTY OF COOK )
On this 25th day of March, 1997, before me personally appeared Jordan
B. Allen, known to me to be the person whose name is subscribed to the
foregoing instrument and who, being by me duly sworn, did depose and say that
he is Senior Vice President of The Delta Queen Steamboat Co. and DQSB II, Inc.,
the Managing Members of GREAT AQ STEAMBOAT, L.L.C., a Delaware limited
liability company, and acknowledged to me that he executed the same on behalf
of said companies for the purposes and consideration therein expressed and as
the free and voluntary act and deed of himself and said companies.
/S/ Andria Sheldon
(SEAL) -------------------------------
Notary Public
My commission expires: 4/28/00
STATE OF ILLINOIS )
) SS.:
COUNTY OF COOK )
On this 25th day of March, 1997, before me personally appeared Jordan
B. Allen, known to me to be the person whose name is subscribed to the
foregoing instrument and who, being by me duly sworn, did depose and say that
he is Senior Vice President of The Delta Queen Steamboat Co. and DQSB II, Inc.,
the Managing Members of GREAT AQ STEAMBOAT, L.L.C., a Delaware limited
liability company, successor by merger and operation of law to Great AQ
Steamboat Co., a Delaware corporation, and acknowledged to me that he executed
the same on behalf of said companies for the purposes and consideration therein
expressed and as the free and voluntary act and deed of himself and said
companies.
/S/ Andria Sheldon
(SEAL) -------------------------------
Notary Public
My commission expires: 4/28/00
8
<PAGE> 9
STATE OF NEW YORK )
) SS.:
CITY OF NEW YORK )
I, the undersigned, a Notary Public in and for the State of New York,
do hereby certify that Mary Lagumina, on this 25th day of March, 1997,
personally appeared before me an Assistant Vice President of The Bank of New
York, the aforesaid officer being personally well known to me as the person who
executed the foregoing instrument hereto annexed and acknowledged the same to be
her free act and deed as said officer on behalf of The Bank of New York. GIVEN
under my hand and seal this __________ day of ________, 1997.
William J. Cassels
--------------------------
Notary Public
(Notorial Stamp and Seal)
My Commission Expires: 5/16/98
9
<PAGE> 10
EXHIBIT A
Great AQ Steamboat, L.L.C., a Delaware limited liability company, is successor
in interest to Great AQ Steamboat Co. Great AQ Steamboat, L.L.C., effective
December 31, 1996, assumed all of the rights, duties and obligations of Great AQ
Steamboat Co. relating to this 2020 Bond.
Great AQ Steamboat, L.L.C., a Delaware limited liability company, is successor
in interest to Great AQ Steamboat Co. Great AQ Steamboat, L.L.C., effective
December 31, 1996, assumed all of the rights, duties and obligations of Great AQ
Steamboat Co. relating to this or 2005 Note.
10
<PAGE> 1
EXHIBIT 4.(ii)(c)(13)
CONFIRMATION OF GUARANTY AGREEMENT
This Confirmation of Guaranty Agreement, effective as of December 31, 1996, is
made by The Delta Queen Steamboat Co., a corporation organized and existing
under the laws of the State of Delaware (the "Guarantor"), in favor of the
United States of America, represented by the Secretary of Transportation,
acting by and through the Maritime Administration (the "Secretary").
WHEREAS, on August 24, 1995, the Guarantor executed a Guaranty Agreement
(the "Guaranty Agreement") in favor of the Secretary, relating to the
guarantee of the due and punctual payment of United States Government
Guaranteed Ship Financing Obligations, American Queen Series, made up of
the 2005 Notes and the 2020 Bonds (the "Obligations") in the amount of
$60,589,000.00, of which $58,165,000.00 are Outstanding on the date hereof,
issued by Great AQ Steamboat Co., a Delaware corporation (the "Original
Shipowner"), pursuant to the Secretary's Note.
WHEREAS, effective as of December 31, 1996, the Original Shipowner merged
(the "Merger") into Great AQ Steamboat, L.L.C., a Delaware limited
liability company (the "LLC") with the LLC being the successor entity,
assuming all of the rights, duties and obligations of the Original
Shipowner, including the Obligations and the Secretary's Note.
WHEREAS, effective December 31, 1996, the LLC has endorsed the Secretary's
Note in order to, inter alia, correct an error in the manner of calculating
interest applicable to the 2005 Notes.
WHEREAS, the Secretary has required this Confirmation of Guaranty Agreement
from Guarantor as an integral part of the consideration offered by or on
behalf of the LLC and the Original Shipowner as a condition of the
Secretary's consent to the Merger.
NOW THEREFORE, in consideration of the foregoing premises and of other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Guarantor hereby acknowledges that the LLC has endorsed the
Secretary's Note for the purposes of correcting the method for calculation
of interest on the 2005 Notes and of assuming payment of the Obligations,
and the Guarantor consents to such endorsement and confirms each and every
term and obligation of the Guaranty Agreement and further confirms that it
is absolutely, irrevocably and unconditionally bound by the Guaranty
Agreement subsequent to the Merger as if the LLC had been an original party
to the Secretary's Note, and as if the interest calculation applicable to
the 2005 Notes had been correct.
Unless otherwise specifically defined herein, the capitalized terms used but
undefined herein shall have the respective meanings ascribed to them in
Schedule X to the Security Agreement dated August 24, 1995, between the
Original Shipowner and the Secretary, as the same is amended through the date
hereof.
<PAGE> 2
IN WITNESS WHEREOF, this Confirmation of Guaranty Agreement has been executed
on March 25, 1997, effective as of the day and year first above first written.
THE DELTA QUEEN STEAMBOAT CO., a
Delaware corporation
By: /s/ Jordan B. Allen
-------------------------------
Vice President
2
<PAGE> 1
EXHIBIT 4.(ii)(c)(14)
ENDORSEMENT NO. 1 TO SECRETARY'S NOTE FROM GREAT AQ STEAMBOAT, L.L.C. TO THE
UNITED STATES OF AMERICA
FOR VALUE RECEIVED, Great AQ Steamboat, L.L.C., a Delaware limited liability
company (the "Shipowner"), does hereby assume and promise to pay to the
Secretary, principal of, and interest (and premium, if any) on that certain
Secretary's Note (the "Note"), relating to United States Government Guaranteed
Ship Financing Obligations, American Queen Series, dated August 24, 1995, as
amended or endorsed through the date hereof in the original principal amount of
$60,589,000.00
Wherever in the Note "Shipowner" appears, it shall be deemed to mean and refer
to Great AQ Steamboat, L.L.C., a Delaware limited liability corporation.
The Secretary and the Shipowner agree that the principal of the Note outstanding
on the date hereof is $58,165,000.00, consisting of $21,812,000.00 relating to
the 2005 Notes and $36,353,000.00 relating to the 2020 Bonds and that the
interest on each is calculated as set forth in the Addendum attached hereto
which is made a part hereof by reference. All terms and provisions of the Note
shall remain unchanged and in full force and effect except as specifically
amended hereby.
Terms used herein and not otherwise defined shall have the definitions set forth
in Schedule X to the Security Agreement dated August 24, 1995, between the
Secretary and Great AQ Steamboat Co., as amended on the date hereof by the
Modification, Assignment and Assumption Agreement between and among the
Secretary, the Original Shipowner and the Shipowner.
IN WITNESS WHEREOF, the Shipowner has assumed this Endorsement to be duly
executed on March 25, 1997, effective as of December 31, 1996.
GREAT AQ STEAMBOAT, L.L.C.
By: See signature page attached hereto
------------------------------------
Vice President
<PAGE> 2
SIGNATURE PAGE
GREAT AQ STEAMBOAT, L.L.C., a
Delaware limited liability company
By: The Delta Queen Steamboat Co., a
Delaware corporation, a Managing
Member
/S/ Jordan B. Allen
By: ------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
By: DQSB II, Inc., a Delaware
corporation, a Managing Member
By: /S/ Jordan B. Allen
-------------------------------------
Name: Jordan B. Allen
Title: Senior Vice President
<PAGE> 3
ADDENDUM TO THE SECRETARY'S NOTE
Interest on this Secretary's Note shall be payable from August 24,
1995, semi-annually on February 24 and August 24 of each year, commencing
February 24, 1996, until the principal sum has been paid at the following rates:
1. With respect to principal relating to the 2005 Notes, said amounts
shall bear interest at a floating rate equal to 0.25% plus the six (6) month
London Interbank Borrowing Rate ("LIBOR"), calculated on the basis of the actual
number of days for which interest is payable divided by 360 from the interest
payment date referred to above next preceding the date of this Secretary's Note
to which interest on the 2005 Notes has been paid (unless the date hereof is the
date to which interest on the 2005 Notes has been paid, in which case from the
date of this Secretary's Note), or if no interest has been paid on the 2005
Notes since the date of the Secretary's Note, from such date, until payment of
said principal sum has been made or duly provided for, and at the same rate per
annum on any overdue principal; if all or a portion of any principal or interest
due on this Secretary's Note is not paid by the Shipowner when due, such overdue
amount shall bear interest at the rate per annum that otherwise would be
applicable pursuant to the following paragraph (for Reset Periods, as
hereinafter defined, of six (6) months), notwithstanding any other provision of
this Secretary's Note, in no event shall the interest rate of this Secretary's
Note, with respect to amounts Outstanding relating to the 2005 Notes, whether
pre-default or post-default, exceed 12.55% per annum.
The floating interest rate is calculated as follows: Two Business
Days prior to the commencement of each Reset Period, as such term is defined
below ("Interest Reset Date"), the Indenture Trustee will determine LIBOR for
such Reset Period on the basis of the offered rates for deposits in United
States dollars having a maturity of six (6) months (and, if so categorized, in a
principal amount comparable to the amount scheduled to be Outstanding under the
2005 Notes [having the same Reset Period] during such Reset Period) which appear
on the Reuters Screen LIBO page as of 11:00 a.m., London time. If at least two
such offered rates appear on the Reuters Screen LIBO page, LIBOR for such Reset
Period shall be the arithmetic average (rounded upwards, if necessary to the
nearest 1/100 of 1%) of such offered rates on the applicable Interest Reset
Date, as determined by the Indentured Trustee. If fewer than two offered rates
appear, LIBOR for such Reset Period shall be the arithmetic average (rounded
upwards if necessary, to the nearest 1/100 of 1%) of the rates quoted at
approximately 11:00 a.m., New York time, on such Interest Reset Date by three
major banks in New York City selected by the Indenture Trustee as the rates at
which such banks offer deposits in United States dollars to leading banks in the
interbank eurodollar market for delivery on the first day of such Reset Period,
having a maturity of six (6) months and in a principal amount comparable to the
amount scheduled to be Outstanding under the 2005 Notes (having the same Reset
Period) during such Reset Period; provided, however, that if the banks in New
York City selected by the Indenture Trustee are not quoting rates as mentioned
herein, LIBOR for such Reset Period shall be the single rate appearing on the
Reuters Screen LIBO Page in effect on such Interest Reset Date, or, if no such
rate appears, LIBOR for such Reset Period shall be as determined on the previous
Interest Reset Date. For the purpose of calculation of the
<PAGE> 4
LIBOR rate, the term "Reset Period" will mean (i) initially, the period from and
including the date of this Secretary's Note and ending on but excluding the
twenty-fourth (24th) day of February, 1996 and (ii) thereafter, each successive
period beginning on the last day of the next preceding Reset Period and ending
on but excluding the twenty-fourth (24th) day of the next succeeding sixth
calendar month, provided, however, if any Reset Period would otherwise end on a
day which is not a Business Day, such Reset Period will be extended to the next
succeeding Business Day; and provided, further, with respect to overdue amounts
of principal and interest on the 2005 Notes, the Reset Period will also be
provided herein.
2. With respect to principal relating to the 2020 Bonds, this
Secretary's Note shall bear interest at the rate of 7.68%.
<PAGE> 1
EXHIBIT 4.(ii)(c)(15)
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT, DATED AS OF MARCH 25, 1997 (THE
"SUBORDINATION AGREEMENT"), IS MADE BY AND AMONG GREAT AQ STEAMBOAT, LLC (THE
"DEBTOR"), THE DELTA QUEEN STEAMBOAT CO., A DELAWARE CORPORATION, ITS SUCCESSORS
AND ASSIGNS ('DQSB"), AND DQSB II, INC., A DELAWARE CORPORATION, ITS SUCCESSORS
AND ASSIGNS (TOGETHER WITH DQSB, THE "SUBORDINATED CREDITORS"), AND THE UNITED
STATES OF AMERICA, REPRESENTED BY THE SECRETARY OF TRANSPORTATION, ACTING BY AND
THROUGH THE MARITIME ADMINISTRATOR (THE "SECRETARY" OR THE "SENIOR CREDITOR",
AND TOGETHER WITH THE DEBTOR AND THE SUBORDINATED CREDITORS, THE "PARTIES").
W I T N E S S E T H:
WHEREAS, the Debtor is successor to Great AQ Steamboat Co. ("Great
AQ"), the latter of which issued certain Obligations in August 1995, which were
guaranteed by the Secretary pursuant to Title XI of the Merchant Marine Act,
1936 (the "Guarantee");
WHEREAS, in connection with the Guarantee, Great AQ executed that
certain promissory note in favor of the Secretary, as obligee, in the amount of
the Bonds (the "Secretary's Note"), and, pursuant to Endorsement No. 1 to
Secretary's Note, dated as of the date hereof, the Debtor has assumed payment of
the Secretary's Note;
WHEREAS, the Subordinated Creditors are entitled to payment of certain
amounts by the Debtor (the "Distributions") under the terms of the Debtor's LLC
agreement (sometimes hereinafter referred to as the "LLC Agreement" or the
"Subordinated Documents");
WHEREAS, the Debtor has entered into and assumed that certain Security
Agreement, Contract No. MA-13048 (the "Security Agreement"), dated the date
hereof, with the Secretary in connection with the Guarantee; and
WHEREAS, the Debtor has agreed in the Security Agreement to make no
Distributions to its Members except in certain circumstances, and, in
consideration of the Secretary's consent to the restructuring of, and assumption
of the Obligations by the Debtor, and in order to induce the Secretary to
continue the Guarantee of the Obligations as so assumed, the Debtor and the
Subordinated Creditors wish to conform the provisions of the LLC Agreement with
the terms of the Title XI Reserve Fund and Financial Agreement (the "RFFA"),
and, inter alia, to subordinate payment due the Subordinated Creditors under the
LLC Agreement to payment of the Secretary's Note,
<PAGE> 2
NOW THEREFORE, in consideration of the premises and the mutual
agreements contained herein, and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby agree as follows:
1. DEFINITIONS. For purposes of this Subordination Agreement,
capitalized terms used but undefined herein shall have the meanings ascribed to
them in Schedule X to the Security Agreement, and the following terms shall
have the following meanings:
"Senior Debt" means all amounts and other obligations (including,
without limitation, all principal, interest, fees, expenses and indemnities)
now or hereafter owing from the Debtor, its successors and assigns, to the
Senior Creditor, its successors and assigns, including, without limitation, all
amounts owing under the Secretary's Note, or any promissory notes, security
agreements, guaranties or other documents or instruments related thereto
whenever executed.
"Senior Liens" means all liens, mortgages, security interests
and/or other incumbrances of any nature or type, now or hereafter securing, in
whole or in part, any of the Senior Debt.
"Senior Loan Documents" means any agreements, documents, or
instruments now or hereafter evidencing or securing all or any portion of the
Senior Debt, including, without limitation, the Secretary's Note.
"Subordinated Debt" means all amounts and other obligations
(including, without limitation, all principal, interest, fees, expenses and
indemnities) now or hereafter owing from the Debtor, its successors and
assigns, to the Subordinated Creditors, their successors or assigns, under the
LLC Agreement.
"Subordinated Loan Documents" means any agreements, documents, or
instruments now or hereafter evidencing or securing all or any portion of the
Subordinated Debt, including without limitation, the LLC Agreement.
2. CONSENT OF SUBORDINATED CREDITORS. Notwithstanding any of the
terms of the Subordinated Loan Documents, each Subordinated Creditors do
hereby subordinate the Debtor's payment of any Distribution to which it is
entitled under the Subordinated Loan Documents to the Debtor's payment of all
amounts due under the Senior Loan Documents; provided, however, that the Debtor
may pay a Distribution as set forth herein.
3. SUBORDINATION OF SUBORDINATED DEBT. So long as no default, or
event which with notice or the passage of time or both would constitute a
default, has occurred or is continuing under or with respect to the Senior Loan
Documents or the Subordinated Loan Documents, the Debtor may repay the
Subordinated Debt only to the extent the Debtor is permitted to pay dividends
under the terms of the RFFA;
<PAGE> 3
provided, however, that in no event shall the sum of the payment of the
Subordinated Debt or the Subordinated Notes plus the payment of dividends exceed
the amount specified in Section 13(c)(1) of the RFFA.
4. SUBORDINATED CREDITORS AND LIENS. Subordinated Creditors
hereby agree that so long as the Senior Debt remains outstanding, the
Subordinated Debt shall not be secured by any liens, security interests,
mortgages, hypothecations, or any other type of incumbrance whatsoever.
5. DISTRIBUTIONS UPON DEBTOR INSOLVENCY. (a) Upon (i) any
distribution of assets of Debtor in connection with any dissolution, winding up
or liquidation of the Debtor (whether in bankruptcy, insolvency, or
receivership proceedings, upon an assignment for the benefit of creditors or
otherwise), (ii) any other marshaling of the assets and liabilities of the
Debtor, or (iii) the reorganization of the Debtor (the events in clauses (i),
(ii) and (iii) above hereinafter collectively referred to as "Debtor
Insolvency"), Senior Creditor will first be entitled to receive payment in
full, in accordance with the terms of the Senior Loan Documents, of all sums
owing under or in respect of the Senior Debt before Subordinated Creditors
shall be entitled to receive from the Debtor any payment owing under the
Subordinated Loan Documents or in respect of the Subordinated Debt.
(b) Upon default by the Debtor under any of the Senior Debt or
Senior Loan Documents, or Debtor Insolvency, Senior Creditor is hereby
irrevocably authorized and empowered (in its own name or in the name of
Subordinated Creditors or otherwise), but shall have no obligation, to demand,
sue for, collect and receive every payment or distribution referred to herein,
and give acquittance for and to file claims and proofs of claim and to take
such other action with respect to the Subordinated Debt as Senior Creditor may
deem necessary or advisable for the exercise or enforcement of any of its
rights or interests hereunder.
(c) To the extent there are any sums owing in respect of the
Senior Debt, Subordinated Creditors shall duly and promptly take such action as
Senior Creditor may reasonably request (i) to collect the Subordinated Debt
for the account of the Senior Creditor and to file appropriate claims or proofs
of claim in respect of the Subordinated Debt; (ii) to execute and deliver to
Senior Creditor such powers of attorney, assignments or other instruments as
Senior Creditor may request in order to enable Senior Creditor to enforce any
and all of the Subordinated Creditors' claims with respect to the Subordinated
Debt, and (iii) to collect and receive any and all payments or distributions
which may be payable or deliverable upon or with respect to the Subordinated
Debt.
6. PAYMENTS RECEIVED CONTRARY TO THIS AGREEMENT. All payments or
distributions upon or with respect to the Subordinated Debt which are received
by Subordinated Creditors contrary to the provisions of this Agreement, shall
be received in trust for the benefit of Senior Creditor, shall be segregated
from other funds and property held by the Subordinated Creditors and shall be
forthwith paid to Senior Creditor in the same form as so received (with any
necessary endorsement) to be
<PAGE> 4
applied to the payment or prepayment of the Senior Debt in accordance with the
terms of the Senior Loan Documents.
7. DEFAULT AND ENFORCEMENT OF SUBORDINATED DEBT. In the event of
a default with respect to the Senior Debt or the Subordinated Debt, or event
which with notice or the passage of time or both would constitute a default,
has occurred or is continuing under or with respect to the Senior Debt or the
Subordinated Debt, the Debtor shall not repay the Subordinated Debt unless and
until the Senior Debt has been paid in full; provided, however, that in the
event of a default under the Subordinated Debt, the Subordinated Creditors may
seek recourse against the Debtor, but only with the prior written consent of
the Secretary, which shall be granted or withheld in his sole discretion.
8. DEFAULT AND NET WORTH OF DEBTOR. In the event and during the
continuance of any default by the Debtor or the Subordinated Creditors in the
observance or performance of any of the provisions of this Subordination
Agreement, the Subordinated Debt shall forthwith cease to be included in New
Worth, as defined in the RFFA, without any requirement for notice, demand, or
other action by the Secretary.
9. DEBTOR'S REPRESENTATIONS AND WARRANTIES. The Debtor hereby
represents and warrants to the Secretary (a) that the factual statements set
forth in the recitals herein are true and accurate; and (b) that it has made
all Senior Loan Documents available to the Subordinated Creditors.
10. SUBORDINATED CREDITORS' REPRESENTATIONS AND WARRANTIES. The
Subordinated Creditor each hereby represents and warrants to the Secretary (a)
that the factual statements set forth in the recitals herein are true and
accurate; and (b) that it has either reviewed all the Senior Loan Documents or
hereby waives such review.
11. SPECIFIC PERFORMANCE. Subordinated Creditors hereby agree
that Senior Creditor is hereby authorized to demand specific performance of
this Agreement at any time Subordinated Creditors shall have failed to comply
with any of the provisions of this Agreement applicable to it. Subordinated
Creditors hereby irrevocably waive any defense based on the adequacy of a
remedy at law, which might be asserted as a bar to such remedy of specific
performance.
12. ASSIGNMENTS AND OTHER INSTRUMENTS. Subordinated Creditors
agree to execute and deliver to Senior Creditor such assignments or other
instruments as may be requested by Senior Creditor to enable it to enforce its
rights hereunder, and to collect any and all dividends or other payments or
disbursements which may be made at any time on account of all or any of the
Subordinated Debt so long as any Senior Debt remains due and unpaid.
13. REFERENCES TO SUBORDINATION. Upon the request of the
Secretary, Subordinated Creditors (a) shall cause the Subordinated Loan
Documents, and any amendment, renewal or extension thereof, to refer, in form
and substance satisfactory to the Secretary, to the fact that the indebtedness
evidenced by each such instrument is
<PAGE> 5
subordinated to the Senior Debt under this Subordination Agreement; (b) shall
further mark its books of accounts in such a manner as shall be effective to
give proper notice of the effect of this Agreement; and (c) shall, at any time
and from time to time, promptly execute and deliver all additional instruments
and documents, and take all further action, as may be necessary or desirable, in
the opinion of Senior Creditor, to protect any right or interest granted or
purported to be granted by this Agreement and to enable Senior Creditor to
exercise and enforce its rights and remedies hereunder.
14. NO LIABILITY FOR ACTIONS BY SENIOR CREDITOR. The parties
hereto agree that Senior Creditor shall not be liable for any action or
failure to act under or in connection with any of the documents or instruments
creating the Senior Liens or the Senior Debt, it being understood that the
decision of whether and when to act and the manner of proceeding under such
instruments and documents are within the sole discretion of Senior Creditor and
shall not be affected in any manner by the existence of the Subordinated Debt
and the Subordinated Liens. The parties hereto further agree that such
obligations as may be imposed under the documents and instruments creating the
Senior Liens or under the Uniform Commercial Code or other applicable laws
shall run exclusively to the benefit of the Senior Creditor and may be enforced
or waived by the Senior Creditor and not by the Subordianted Creditor.
15. NO DUTY TO INFORM SUBORDINATED CREDITORS. Nothing in this
Agreement shall be construed as imposing on Senior Creditor an obligation to
inform Subordinated Creditors of any defaults arising under the Senior Loan
Documents or to provide Subordinated Creditors with any financial or other
information of which Senior Creditor is or becomes aware with respect to the
Debtor. Without limiting the generality of the foregoing, Senior Creditor
shall not be obligated to provide Subordinated Creditors with a notice that an
event of default has occurred under the Senior Loan Documents.
16. RIGHTS OF SUBROGATION. Subordinated Creditors agree that no
payment or distribution to Senior Creditor pursuant to the provisions of this
Agreement shall entitle Subordinated Creditors to exercise any rights of
subrogation in respect thereof until the Senior Debt has been paid in full.
17. NO ASSIGNMENT OF SUBORDINATED DEBT. Subordinated Creditors
shall not, without Senior Creditor's prior written consent, sell, assign,
pledge, encumber or otherwise dispose of any of the Subordinated Debt, and any
attempt to do so shall be null and void ab initio.
18. OBLIGATIONS HEREUNDER NOT AFFECTED. All rights and interests
of Senior Creditor hereunder, and all agreements and obligations of the
Subordinated Creditors hereunder, shall remain in full force and effect
irrespective of: (a) any lack of validity or enforceability of the Senior Loan
Documents or any other agreement or instrument relating thereto; (b) any change
in the time, manner or place of payment of, or in any other term of, all or any
of the Senior Debt, or any other amendment or waiver of or any consent to the
departure from the Senior Loan Documents; (c) any exchange, release or
nonperfection of any Senior Lien, or any release or amendment or waiver of
<PAGE> 6
or consent to departure from any guaranty supporting all or any portion of the
Senior Debt; or (d) any other circumstances which might otherwise constitute a
defense available to, or a discharge of the Debtor in respect of the Senior Debt
or Subordinated Creditors in respect of this Agreement. This Agreement shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Senior Debt is rescinded or must be otherwise returned
by Senior Creditor upon Debtor Insolvency, all as though such payment had not
been made.
19. WAIVER. Subordinated Creditors and the Debtor hereby waive
promptness, diligence, notice of acceptance and any other notice with respect
to any of the Senior Debt and this Agreement and any requirement that Senior
Creditor protect, secure or insure any security interest or lien or property
subject thereto or exhaust any right or take any action against the Debtor or
any other person or entity or any collateral.
20. MISCELLANEOUS
(a) GOVERNING LAW. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns, and
shall be construed and enforced in accordance with the laws of the District of
Columbia.
(b) SEVERABILITY. If any of the provisions or terms of this Agreement
shall for any reason be held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any other of the terms hereof, and this
agreement shall be construed as if such unenforceable term had never been
contained herein.
(c) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original Agreement but all of
which together shall constitute one and the same instrument.
(d) HEADINGS. The descriptive headings herein are for convenience only
and shall not affect the meaning or construction of any of the provisions
hereof.
(e) NOTICES. All notices and other communications provided for in
this Agreement shall be in writing or (unless otherwise specified) by telex,
telegram or facsimile transmission and shall be mailed (with first class postage
prepaid, return receipt requested) or sent or delivered to each party at the
address set forth under its name on the signature page hereof, or at such other
address as shall be designated by such party in a written notice to each other
party. Except as otherwise specified, all such notices and communications if
duly given or made shall be effective upon receipt.
(f) CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES. The Subordinated
Creditors hereby irrevocably submit to the jurisdiction of any federal court
sitting in the District of Columbia, in any action or proceeding brought to
enforce or otherwise arising out of or relating to this Agreement, and
irrevocably waives to the fullest extent permitted by law any objection which it
may now or hereafter have to the laying of venue in any such action or
proceeding in such forum and hereby further irrevocably waives any claim that
such forum is an inconvenient forum. The Subordinated Creditors agree
<PAGE> 7
that a final judgement in any such action or proceeding shall be conclusive and
may be enforced in any other jurisdiction by suit on the judgement or in any
manner provided by law. Nothing herein shall impair the right of Senior
Creditor or the holder of the Senior Loan Documents to bring any action or
proceeding againt Subordinated Creditors or their respective properties in the
courts of any other jurisdiction, and Subordinated Creditors irrevocably submit
to the nonexclusive jurisdiction of the appropriate courts of the jurisdiction
or jurisdictions in which the Subordinated Creditors are incorporated, or
sitting in any place or places where property or an office of Subordinated
Creditors are located.
(g) ENTIRE AGREEMENT; AMENDMENT. This Agreement represents
the entire Agreement between the parties hereto and, except as expressely
provided herein, shall not be affected by reference to any other documents.
Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, but such may be accomplished only by an
instrument in writing signed by the parties hereto.
(h) COSTS OF ENFORCEMENT. Subordinated Creditors agree to
pay to Senior Creditor any and all costs and expenses, including attorney's
fees, incurred by Senior Creditor as a result of Subordinated Creditors'
default hereunder and/or in protecting and/or enforcing the rights of Senior
Creditor under this Agreement whether or not a lawsuit is commenced.
Attorneys' fees, in either case, shall include services rendered at both the
trial and appellate levels, as well as services rendered subsequent to
judgement and obtaining execution thereon. Costs and expenses, including
attorneys' fees, shall be considered as part of the Senior Debt, as that term
is used herein.
(i) CONTINUING AGREEMENT. This Agreement is solely for
the benefit of, and shall be enforceable by the Senior Creditor, and its
successors, transferees and assigns, and no other person or persons shall have
any right, benefit, priority, or interest under, or because of the existence
of, this Agreement. This Agreement is a continuing agreement and shall (a)
remain in full force and effect until the Senior Debt shall have been paid in
full, and (b) be binding on Subordinated Creditors, their respective successors
or assigns. Without limiting the generality of the foregoing, Senior Creditor
may assign or otherwise transfer any other promissory note held by it
evidencing the Senior Debt to any other person or entity, and such other person
or entity shall thereupon become vested with all the rights in respect thereof
granted to Senior Creditor herein.
<PAGE> 8
IN WITNESS WHEREOF, the parties have duly executed or have caused
this Agreement to be duly executed by their respective signatories hereunto
duly authorized, and have duly caused their seals to be affixed hereto as of
the date and year irst above written.
THE SUBORDINATED CREDITORS
THE DELTA QUEEN STEAMBOAT CO.
BY: /s/ Jordan B. Allen
--------------------------
Name: Jordan B. Allen
Title: Senior Vice President
Address:
Facsimile No.
DQSB II, INC.
BY: /s/ Jordan B. Allen
--------------------------
Name: Jordan B. Allen
Title: Senior Vice President
Address:
Facsimile No.
THE SENIOR CREDITOR
UNITED STATES OF AMERICA
SECRETARY OF TRANSPORTATION
MARITIME ADMINISTRATOR
BY: /s/ Joel C. Richard
--------------------------
Name: Joel C. Richard
Title: Secretary
Address:
Facsimile No.
<PAGE> 9
THE DEBTOR
GREAT AQ STEAMBOAT, LLC
BY: THE DELTA QUEEN STEAMBOAT CO., A
DELAWARE CORPORATION, A MANAGING
MEMBER
By: /s/ Jordan B. Allen
-------------------------
Name:
Title:
Address:
Facsimile No.
BY: DQSB II, INC., A DELAWARE
CORPORATION, A MANAGING MEMBER
By: /s/ Jordan B. Allen
-------------------------
Name:
Title:
Address:
Facsimile No.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> MAR-31-1997
<CASH> 20,602<F1>
<SECURITIES> 0
<RECEIVABLES> 3,377
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 32,517
<PP&E> 213,971
<DEPRECIATION> 48,219
<TOTAL-ASSETS> 212,101
<CURRENT-LIABILITIES> 73,568
<BONDS> 84,686
0
0
<COMMON> 139
<OTHER-SE> 53,708
<TOTAL-LIABILITY-AND-EQUITY> 212,101
<SALES> 0
<TOTAL-REVENUES> 40,372
<CGS> 0
<TOTAL-COSTS> 27,139
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,713
<INCOME-PRETAX> (3,314)
<INCOME-TAX> (1,326)
<INCOME-CONTINUING> (1,988)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,988)
<EPS-PRIMARY> (.14)
<EPS-DILUTED> (.14)
<FN>
<F1>INCLUDES RESTRICTED SHORT-TERM INVESTMENTS OF $2,928.
</FN>
</TABLE>
