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As filed with the Securities and Exchange Commission on February 22, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): FEBRUARY 22, 1999
AMERICAN CLASSIC VOYAGES CO.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE 0-9264 31-0303330
(STATE OR OTHER JURISDICTION (COMMISSION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION FILE NUMBER IDENTIFICATION NO.)
TWO NORTH RIVERSIDE PLAZA, SUITE 200
CHICAGO, ILLINOIS 60606
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Registrant's telephone number, including area code: (312) 258-1890
NOT APPLICABLE
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
===============================================================================
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ITEM 5. Other Events
We currently are negotiating a contract with Ingalls Shipbuilding,
Inc., a subsidiary of Litton Industries, Inc., to build two "world
class" cruise ships for delivery into the Hawaii market. We intend to
construct the new ships over the next five years. Each ship will
contain approximately 1,900 passenger berths. The contract is expected
to include options to build up to four additional vessels. The
estimated total construction costs of the two initial ships are
anticipated to be between $450 million and $470 million per ship. We
expect to execute a definitive design and construction contract by
April 1999. We anticipate that the first ship will be delivered in late
2002 and the second ship in late 2003.
On November 11, 1998, we entered into an agreement to acquire a
recently completed vessel. The agreement is subject to our due
diligence. Assuming that the due diligence is satisfactory, the
purchase of the vessel will occur no later than March 31, 1999. We plan
on outfitting the vessel for overnight passenger service with
approximately 150 passenger berths as part of our Delta Queen Steamboat
Co. business. We estimate the costs to acquire and outfit this vessel
will be $18.2 million. The conversion of the vessel is expected to
take between six and nine months and we expect the vessel to be
available to enter service on West Coast inland waterway itineraries in
early 2000. A copy of the agreement to purchase this vessel is filed
as Exhibit 1 to this Current Report on Form 8-K.
On February 22, 1999, we filed a Registration Statement on Form S-3
with the Securities and Exchange Commission relating to a proposed
public offering of up to 3,450,000 shares of common stock. Merrill
Lynch will be the underwriter for the proposed offering.
Our Board of Directors has approved the amendment of our Certificate of
Incorporation to increase our authorized capital shares from 25,000,000
to 45,000,000 and our authorized shares of common stock from 20,000,000
to 40,000,000. The holders of a majority of the shares of our
outstanding common stock have agreed to consent to this amendment. We
expect this amendment to become effective on or about March 31, 1999
following the satisfaction of regulatory and other requirements.
Some of the information in this Current Report on Form 8-K contains
forward-looking statements that involve substantial risks and uncertainties
within the meaning of the Private Securities Litigation Reform Act of 1995.
Words such as "expect," "anticipate," "intend," "plan," "believe," "estimate"
and variations of such words and similar expressions are intended to identify
such forward-looking statements. We undertake no obligation to publicly update
or revise any forward-looking statements, whether as a result of new
information, future events or otherwise. In light of these risks, uncertainties
and assumptions, the forward-looking events discussed in this Current Report on
Form 8-K might not occur.
ITEM 7. Financial Statements, Pro forma Financial Information and Exhibits
Exhibit
Number Exhibit
1 Asset Purchase and Sale Agreement dated
as of November 11, 1998 by and among The
Delta Queen Steamboat Co., and Richard
C. Breeden as bankruptcy trustee of the
bankruptcy estate of The Bennett Funding
Group, Inc., Bennett Receivables
Corporation, Bennett Receivables
Corporation II, Bennett Management &
Development Corporation, The Processing
Center, Inc., Resort Service Company,
Inc., American Marine International,
Ltd. and Aloha Capital Corporation.
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 hereunto duly authorized.
AMERICAN CLASSIC VOYAGES CO.
Date: February 22, 1999 By: /s/ Philip C. Calian
---------------------------------------------
Philip C. Calian, President and Chief
Executive Officer
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ASSET PURCHASE AND SALE AGREEMENT
THIS ASSET PURCHASE AND SALE AGREEMENT (the "Agreement"), is made and
entered into as of this 11th day of November, 1998, by and among The Delta Queen
Steamboat Co., a Delaware corporation ("Purchaser"), and Richard C. Breeden, not
individually, but as bankruptcy trustee (the "Trustee") of the bankruptcy estate
of The Bennett Funding Group, Inc. ("BFG"), Bennett Receivables Corporation
("BRC"), Bennett Receivables Corporation II ("BRC II"), Bennett Management &
Development Corporation ("BDMC"), The Processing Center, Inc.("TPC"), Resort
Service Company, Inc.("RSC"), American Marine International, Ltd. ("AMI") and
Aloha Capital Corporation ("ACC"; and collectively with BFG, BRC, BRC II, BDMC,
TPC, RSC and AMI, referred to as "Seller").
W I T N E S S E T H:
WHEREAS, on March 29, 1996, BFG, BRC, BRC II and BDMC filed petitions
for reorganization under Section 301 of the Bankruptcy Code and the Trustee was
appointed trustee for each of them, and such appointment was approved by the
United States Bankruptcy Court for the Northern District of New York
("Bankruptcy Court"), on April 18, 1996; and
WHEREAS, on April 19, 1996, AMI and RSC filed, and on April 26, 1996
TPC filed, petitions for relief under Section 301 of the Bankruptcy Code; and
WHEREAS, on April 25, 1996, an involuntary case against ACC was
commenced under Section 303 of the Bankruptcy Code and on May 10, 1996, the
Bankruptcy Court entered an order for relief against ACC; and
WHEREAS, the Trustee was appointed trustee of AMI, RSC, TPC and ACC on
May 14, 1996 and such appointment was approved by the Bankruptcy Court on May
15, 1996; and
WHEREAS, by order dated July 25, 1997, the Bankruptcy Court
substantively consolidated the estates of BFG, BRC, BRC II, BDMC, TPC, RSC, AMI
and ACC and such consolidated estates are substantively consolidated under Case
No. 96-61376; and
WHEREAS, Seller is the owner of the M/V Speculation, hull number 40
from Freeport Shipbuilding & Marine Repair, Inc. (also referred to as The
Speculator); and
WHEREAS, Purchaser is a wholly-owned subsidiary of American Classic
Voyages Co. ("AMCV"), a publicly-held corporation trading on the Nasdaq National
Market; and
WHEREAS, Purchaser desires to acquire from Seller, and Seller desires
to sell to Purchaser, the Vessel (as hereinafter defined) on an "as is, where
is" basis and all of the assets used or to be used in connection with the
operation of the Vessel, free and clear of all liens,
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claims and encumbrances, all upon and subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants, representations, warranties and agreements herein contained, each of
which is expressly relied upon by the parties hereto in entering into this
Agreement, and for other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
The following terms, as used herein, shall have the following meanings:
"Bankruptcy Code" shall mean the United States Bankruptcy Code, as
amended, and the rules and regulations promulgated thereunder.
"Closing" shall mean the consummation of the purchase and sale of the
Vessel and the other transactions contemplated under this Agreement.
"Closing Date" shall mean the date of the Closing.
"Governmental Authority" shall mean any nation, government, body,
court, bureau, commission, agency or other authority or governmental or
regulatory official, or any other person which owns or has jurisdiction over the
Vessel, Seller or Purchaser, as appropriate.
"Inventory" shall mean all inventories, goods and supplies held for
sale or use in the operation of the Vessel, including, fuel and other items
relating to the operation of the Vessel, wherever located.
"Laws" shall mean any law, ordinance, or governmental or regulatory
rule, or regulation, whether federal, state, local or foreign.
"Material Adverse Effect" shall mean a material and adverse effect on
the condition of the Vessel or the consummation of the transactions contemplated
under this Agreement.
ARTICLE II
PURCHASE AND SALE OF VESSEL
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2.1 Sale. At the Closing hereunder, and except as otherwise
specifically provided in this Article 2, Seller shall grant, sell, convey,
assign, transfer and deliver to Purchaser, on an "as is, where is" basis, and
subject to the terms and conditions of this Agreement, all right, title and
interest of Seller in and to the vessel M/V Speculation, hull number 40 from
Freeport Shipbuilding & Marine Repair, Inc. (also referred to as The Speculator)
and all of the assets, properties and rights of Seller relating to the vessel
and all of the assets used or to be used in the operation of the vessel (the
"Vessel"), in accordance with an order of the Bankruptcy Court, which shall be
substantially in the form of the proposed order attached hereto as Exhibit A.
2.2 Included Assets. The Vessel, consisting of the assets identified on
Schedule 2.2 hereto, shall include, any of the following assets, properties and
rights of Seller used directly or indirectly in the operation of the Vessel and
presently owned by and in the possession of Seller:
(a) the vessel, including all fixtures, furniture and
furnishings (including all life jackets, stair treads, mooring lines,
video cameras, television cameras, video cassette recorders, sound
systems, radar and life rafts) artwork, equipment, plans and
specifications, spare parts, machinery, equipment (including all
bridge, electronic, galley and bar equipment), tools, Inventory, goods,
and other tangible personal property, and any warranties relating to
the foregoing; and
(b) all information, files, records, data, plans, blueprints,
mechanical and other specifications or correspondence with any
governmental agencies, including the United States Coast Guard,
correspondence with any classification societies, and recorded
knowledge, related to the foregoing and all other books and records of
Seller relating to the vessel, in each case as presently owned by and
in the possession of Seller or its agents.
Schedule 2.2 shall be prepared by Purchaser, subject to the approval of Seller,
and shall be attached hereto no later than December 1, 1998. Notwithstanding the
foregoing, (i) in no event shall the Vessel include any deposit made by Allan
Paulson and (ii) with respect to any assets of the Vessel in the possession of
Marine Design, Inc., Seller shall make reasonable efforts to deliver any such
assets to Purchaser.
2.3 Purchase. At the Closing hereunder, Purchaser shall purchase the
Vessel from Seller, upon and subject to the terms and conditions of this
Agreement and in reliance on the representations, warranties and covenants of
Seller contained herein, in exchange for the Purchase Price.
2.4 Purchase Price. The "Purchase Price" shall be an amount equal to
$8,000,000 in cash.
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2.5 Earnest Money.
2.5.1 Deposit of Earnest Money in Escrow Account. Purchaser
shall deposit with Trustee to be held by Trustee in a segregated account
("Account"), which Account shall not be (i) invaded by Trustee, (ii) co-mingled
with any other funds, or (iii) subject to any liens or administrative claims
until termination of this Agreement and delivery to Trustee in accordance with
the terms and conditions set forth in this Agreement, if applicable, wherein
Purchaser shall deposit, certain earnest money in an aggregate amount of up to
$280,000 ("Earnest Money") in accordance with following schedule:
(a) $40,000 promptly following execution of this
Agreement by the parties hereto;
(b) $40,000 on the date which is 45 days following
the approval of this Agreement by the Bankruptcy Court,
provided Purchaser has not terminated this Agreement prior
thereto pursuant to Section 8.1 hereof;
(c) $200,000 on the date which is 90 days following
the approval of this Agreement by the Bankruptcy Court,
provided Purchaser has not terminated this Agreement prior
thereto pursuant to Section 8.1 hereof.
2.5.2 Application or Return of Earnest Money. Unless refunded
to the Purchaser in accordance with the terms hereof, or otherwise forfeited in
accordance with the terms hereof, the Earnest Money shall be applied to the
Purchase Price and shall reduce the amount payable at the Closing or retained by
Seller. The Earnest Money shall be refundable to the Purchaser only in the event
that the Bankruptcy Court does not approve this Agreement or Purchaser
terminates this Agreement pursuant to Section 8.1(b) hereof.
2.6 Payment at Closing. On the Closing Date, Purchaser shall pay to
Seller the Purchase Price, less the amount of the Earnest Money deposited by
Purchaser in accordance with Section 2.5 hereof, by wire transfer to such bank
account as shall be designated in writing by Seller to Purchaser.
2.7 Liabilities. Purchaser shall not assume, pay, discharge, perform or
in any way be responsible or liable for any claims, liabilities or obligations
of Seller, whether fixed or unfixed, known or unknown, asserted or unasserted,
choate or inchoate, liquidated or unliquidated, secured or unsecured.
2.8 Asset Schedule. In addition to its right to conduct a due diligence
review hereunder, Purchaser shall have the right to perform, and Seller shall
permit and provide reasonable assistance to Purchaser in order to enable
Purchaser to conduct, a physical inventory of the Vessel one business day prior
to the Closing Date.
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2.9 Litigation. Seller shall retain all rights, title and interest in
and with respect to, and any liabities and expenses relating to, certain claims
(and any relating counterclaims) asserted or to be asserted by Seller against
Freeport Shipbuilding and Marine Repair, Inc.
ARTICLE III
CLOSING DELIVERIES, THIRD PARTY CONSENTS,
CHANGE IN NAME AND FURTHER ASSURANCES
3.1 Closing. The Closing of the sale and purchase of the Vessel and the
other transactions contemplated hereunder shall take place on the date (or the
first business day thereafter if not on a business day) which is 60 days
following the completion of Purchaser's due diligence review of the Vessel and
the satisfaction or waiver of the conditions set forth in Article VII of this
Agreement, at the offices of Simpson Thacher & Bartlett, 425 Lexington Avenue,
New York, New York, or on such other date and at such other place as the parties
may mutually agree.
3.2 Items to be Delivered by Seller at Closing. At the Closing and
subject to the terms and conditions herein contained, Seller shall deliver to
Purchaser the following:
(a) a completed builder certification on United States Coast
Guard Form CG-1261, identifying the Vessel by hull number, or such
bills of sale (including United States Coast Guard Form CG-1340 bill of
sale for the Vessel), assignments, endorsements, certificates of title
and other good and sufficient instruments and documents of conveyance
and transfer in form reasonably satisfactory to Purchaser and its
counsel as shall be necessary and effective to transfer and assign to,
and vest in, Purchaser all of Seller's right, title and interest in and
to the Vessel, including good and valid title in and to the Vessel; and
(b) all of the records, files, correspondence, legal opinions,
rulings issued by governmental entities, and other documents, books,
records, papers, files, office supplies and data belonging to Seller
which are part of the Vessel and which are in the possession of Seller
or its agents; provided, however, that Seller shall be entitled to
retain, and permit Purchaser to copy, any records, files,
correspondence of other materials necessary for ongoing or anticipated
litigation involving Seller or as otherwise reasonably retained by
Seller;
and shall take all such steps as may be reasonably required to put Purchaser in
actual possession and operating control of the Vessel as of the Closing.
3.3 Items to be Delivered by Purchaser at Closing. At the Closing and
subject to the terms and conditions herein contained, Purchaser shall deliver to
Seller the following:
(a) the Purchase Price in accordance with Section 2.4 hereof;
and
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(b) a duly executed certificate of an officer of Purchaser
dated the Closing Date, certifying in such detail as Seller may
reasonably request that the conditions specified in Sections 7.1.1 and
7.1.2 of this Agreement have been fulfilled.
3.4 Further Assurances. Seller shall, from time to time after the
Closing, at Purchaser's request and without further consideration, use its
reasonable efforts to execute, acknowledge and deliver to Purchaser such other
instruments of conveyance and transfer and will take such other actions and
execute and deliver such other documents, certifications and further assurances
as Purchaser may reasonably require in order to vest more effectively in
Purchaser, or to put Purchaser more fully in possession of, the Vessel. Each of
the parties hereto will cooperate with the others and execute and deliver to the
other parties hereto such other instruments and documents and take such other
actions as may be reasonably requested from time to time by any other party
hereto as necessary to carry out, evidence and confirm the intended purposes of
this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows:
4.1 Power; Authorization; Enforceable Obligations. Subject only to the
approval of the Bankruptcy Court, Seller has the power, authority and legal
right to execute, deliver and perform this Agreement. Subject only to the
approval of the Bankruptcy Court, which approval is a condition precedent to all
obligations hereunder, the execution, delivery and performance of this Agreement
by Seller has been duly authorized by all necessary corporate and shareholder
action, as required by applicable law. This Agreement and the other agreements,
documents and instruments executed and delivered by Seller in connection
herewith (the "Seller's Documents") have been duly executed and delivered on
behalf of Seller by duly authorized officers of Seller and this Agreement and
Seller's Documents constitute (assuming due execution by the other parties
thereto) the legal, valid and binding obligations of Seller, enforceable against
Seller in accordance with their respective terms.
4.2 Validity of Contemplated Transactions, etc. To the knowledge of
Seller, the execution, delivery and performance of this Agreement by Seller does
not and will not violate, conflict with or result in the breach of any term,
condition or provision of, or require the consent of any other person under, (a)
any existing Law to which any of Seller are subject, (b) any judgment, order,
writ, injunction, decree or award of any Governmental Authority which is
applicable to any of Seller, (c) the charter documents of Seller or any
securities issued by Seller, or (d) any Contract or other instrument, document
or understanding, oral or written, to which any of Seller is a party, by which
any of Seller may have rights or by which the Vessel may be bound or affected,
or give any person with rights thereunder the right to terminate, modify,
accelerate or otherwise change the existing rights or obligations of any of
Seller thereunder.
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4.3 No Third Party Agreements. To the knowledge of Seller, other than
an agreement with Allan Paulson, there are no existing Contracts, options or
rights with, of, or to any person to acquire or use any of Seller's assets,
properties or rights included in the Vessel or any interest therein.
4.4 Existing Condition. As of the date of this Agreement and as the
Closing Date, Seller has not suffered any damage, destruction or loss, whether
or not covered by insurance, materially and adversely affecting the Vessel.
4.5 Litigation. Other than the Bankruptcy Court Proceedings, any
actions involving Mr. Allan Paulson, or any action involving Freeport
Shipbuilding and Marine Repair, Inc. or any of their affiliates, no litigation,
including any arbitration or other proceeding of or before any Governmental
Authority or arbitrator is pending or, to the best knowledge of Seller,
threatened against Seller which relates to the Vessel or the transactions
contemplated by this Agreement. Other than pursuant to proceedings in the
Bankruptcy Court, the Vessel is not subject to the provisions of any judgment,
order, writ, injunction, decree or award of any Governmental Authority which
could have an adverse effect on the Vessel or the transactions contemplated
hereby.
4.6 Vessel. Seller lawfully owns and is lawfully possessed of the
Vessel, free from any commitment to make the Vessel available for charter, sale
or use by any Governmental Authority. The delivery to Purchaser of the
instruments of transfer of ownership of the Vessel contemplated by Section
3.2(a) have been approved by the Bankruptcy Court, a copy of whose proposed
order has been previously delivered to Purchaser for its approval and which
order is attached hereto as Exhibit A.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
5.1 Corporate Existence. Purchaser is a corporation organized, validly
existing and in good standing under the laws of the State of Delaware and is a
wholly-owned subsidiary of AMCV.
5.2 Corporate Power; Authorization; Enforceable Obligations. Purchaser
has the corporate power, authority and legal right to execute, deliver and
perform this Agreement, subject to approval by the Board of Directors of AMCV.
Prior to the Closing Date, the execution, delivery and performance of this
Agreement by Purchaser will have been duly authorized by all necessary corporate
action. This Agreement and the other agreements, documents and instruments
executed and delivered by Purchaser in connection herewith (the "Purchaser's
Documents") have been duly executed and delivered by duly authorized officers of
Purchaser, and this Agreement and Purchaser's Documents and, subject to the
approval of
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the AMCV Board of Directors and assuming due execution by the other parties
thereto, constitute the legal, valid and binding obligations of Purchaser
enforceable against Purchaser in accordance with their respective terms, except
to the extent such enforceability may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally.
5.3 Validity of Contemplated Transactions, etc. The execution, delivery
and performance of this Agreement by Purchaser does not and will not violate,
conflict with or result in the breach of any term, condition or provision of, or
require the consent of any other party to, (a) to the best knowledge of
Purchaser, any existing law, ordinance, or governmental rule or regulation to
which Purchaser is subject, (b) any judgment, order, writ, injunction, decree or
award of any court, arbitrator or governmental or regulatory official, body or
authority which is applicable to Purchaser, (c) the charter documents or By-laws
of, or any securities issued by, Purchaser, or (d) any mortgage, indenture,
agreement, contract, commitment, lease, plan or other instrument, document or
understanding, oral or written, to which Purchaser is a party or by which
Purchaser is otherwise bound. No authorization, approval or consent of, and no
registration or filing with, any governmental or regulatory official, body or
authority is required in connection with the execution, delivery and performance
of this Agreement by Purchaser.
5.4 Citizenship. Purchaser is a citizen of the United States within the
meaning of Section 2 of the Shipping Act of 1916, as amended, for purposes of
engaging in the coastwise trades of the United States.
ARTICLE VI
AGREEMENTS PENDING CLOSING
6.1 Agreements of Seller Pending the Closing. Seller covenants and
agrees that, pending the Closing and except as otherwise agreed to in writing by
Purchaser:
6.1.1 Bankruptcy Court Approval. Upon execution of this
Agreement, Seller shall immediately initiate proceedings before the Bankruptcy
Court seeking, and shall act in good faith and use all reasonable efforts
pursuing, a final order of the Bankruptcy Court pursuant to Section 363 of the
Bankruptcy Court authorizing and approving the sale of the Vessel to Purchaser
pursuant to this Agreement and the consummation of the transactions contemplated
hereunder, upon the minimum notice required by law.
6.1.2 Maintenance of Physical Assets. Seller shall continue to
maintain and service the physical assets, including the Vessel, used in the
conduct of the operation of the Vessel, consistent with current practice.
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6.1.3 Insurance. Seller shall maintain in full force and
effect, and at least at such levels as are in effect on the date hereof, if any,
all insurance policies held with respect to the Vessel as of the date of this
Agreement.
6.1.4 Access. From and after payment by the Purchaser of the
initial deposit of the Earnest Money and subsequent deposits of the Earnest
Money when due, Seller shall give to Purchaser's officers, employees, counsel,
accountants and other representatives reasonable access to and the right to
inspect, during normal business hours, all of the premises, properties, assets,
records, contracts and other documents relating to the Vessel and shall permit
them to consult with the officers, employees, accountants, counsel and agents of
Seller for the purpose of making such investigation of the Vessel as Purchaser
shall reasonably desire to make. Seller shall furnish to Purchaser all such
documents and copies of documents and records and information with respect to
the asVessel ts as Purchaser shall from time to time reasonably request and
shall permit Purchaser and its agents to make such physical inventories and
inspections of the Vessel as Purchaser may request from time to time. Seller
shall provide such authorizations as are necessary to permit release of
information to Purchaser from the United States Coast Guard and classification
societies.
6.1.5 Material Adverse Change. From the date hereof through
the Closing, Seller shall promptly inform Purchaser, in writing, of any actual
or threatened change in condition, of which the Seller has notice, of the Vessel
which have had or are reasonably likely to cause a Material Adverse Effect.
ARTICLE VII
CONDITIONS PRECEDENT TO THE CLOSING
7.1 Conditions Precedent to Purchaser's and Seller's Obligations. The
obligations on the part of each of Purchaser and Seller to consummate the
transactions to be consummated by it at the Closing pursuant to this Agreement
are subject to the satisfaction at or prior to the Closing of each of the
conditions set forth in this Section 7.1, any of which may be waived by
Purchaser or Seller, as the case may be, in its sole discretion.
7.1.1 Representations and Warranties True as of the Closing
Date. The representations and warranties of Purchaser or Seller, as the case may
be, contained in this Agreement or in any list, certificate or document
delivered by Seller to Purchaser or Purchaser to Seller pursuant to the
provisions hereof that are qualified as to materiality shall be true and correct
on the Closing Date with the same effect as though such representations and
warranties were made on and as of the Closing Date, and all representations and
warranties of Seller or Purchaser which are not so qualified shall, in all
material respects, be true and correct on the Closing Date with the same effect
as though such representations and warranties were made on and as of the Closing
Date.
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7.1.2 Compliance with this Agreement. Seller and Purchaser, as
the case may be, shall have performed and complied, in all material respects,
with all agreements and conditions required by this Agreement to be performed or
complied with by it prior to or at the Closing, including delivery to Purchaser
or Seller, as the case may be, of all of the items to be delivered by Seller or
Purchaser, as the case may be, pursuant to Sections 3.2 or 3.3, respectively.
7.1.3 No Threatened or Pending Litigation. On the Closing
Date, no suit, action or other proceeding, or injunction or final judgment
relating thereto, shall be threatened or be pending before any Governmental
Authority in which it is sought to restrain or prohibit or to obtain damages
from Purchaser in connection with this Agreement or the consummation of the
transactions contemplated thereby, and no investigation that might result in any
such suit, action or proceeding shall be pending or threatened.
7.1.4 Bankruptcy Court Approval. The Bankruptcy Court shall
have entered a final order under Section 363 of the Bankruptcy Code authorizing
and approving the sale of the Vessel to Purchaser pursuant to this Agreement and
the consummation of the transactions contemplated hereunder, upon the terms and
conditions set forth in this Agreement and otherwise free and clear of (i) all
liens, security interests and encumbrances of any kind, and (ii) all Contracts,
agreements and arrangements and which final order is final and appealable and
for which no appeal or other challenge to such order is pending.
7.2 Conditions Precedent to the Obligations of Purchaser. The
obligations on the part of Purchaser to consummate the transactions to be
consummated by it at the Closing pursuant to this Agreement are subject to the
satisfaction at or prior to the Closing of each of the conditions set forth in
this Section 7.2, any of which may be waived by Purchaser in its sole
discretion.
7.2.1 Material Adverse Effect. There shall have been no facts,
circumstances, event or occurrence that has had or is reasonably likely to have
a Material Adverse Effect on the Vessel.
7.2.2 AMCV Board Approval. This Agreement and the transactions
contemplated hereunder shall have been approved by action of the Board of
Directors of AMCV on or prior to December 3, 1998. In the event that Purchaser
does not notify Seller on or prior to December 3, 1998 of the failure of this
condition, then this condition shall be deemed to have been satisfied or waived.
7.2.3 Due Diligence. Purchaser shall have completed, prior to
Closing, a due diligence investigation of the Vessel, the scope of which shall
be in Purchaser's sole discretion, and the results of such investigation shall
be satisfactory to Purchaser, in its sole discretion. In the event that
Purchaser does not notify Seller on or prior to the 90th day following
Bankruptcy
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Court approval of this Agreement that Purchaser is not satisfied with the
results of its due diligence investigation, then this condition shall be deemed
to have been satisfied.
ARTICLE VIII
MISCELLANEOUS
8.1 Termination.
Anything herein or elsewhere to the contrary notwithstanding, this
Agreement may be terminated by written notice of termination at any time before
the Closing Date only as follows:
(a) by mutual written consent of Purchaser and Seller; or
(b) by Purchaser in the event that (i) Seller is unable to or
fails to deliver the Vessel to Purchaser, (ii) Seller is in material
breach of any representation, warranty or covenant, and such breach
remains uncured, if capable of being cured, for a period of 30 days
following delivery of notice of such breach or (iii) any condition
precedent to Purchaser's obligations under this Agreement has not been
satisfied; or
(c) by Seller in the event that (i) Purchaser is in material
breach of any representation, warranty or covenant, and such breach
remains uncured, if capable of being cured, for a period of 30 days
following delivery of notice of such breach or (ii) any condition
precedent to Seller's obligations under this Agreement has not been
satisfied; or
(d) by either party if the Closing shall not have occurred by
March 31, 1999.
In the event of termination of this Agreement by Seller or Purchaser
pursuant to this Section 8.1, written notice thereof shall forthwith be given to
the other parties specifying the provision hereof pursuant to which such
termination is made, and this Agreement shall forthwith become void and there
shall be no liability on the part of the parties hereto (or their respective
officers, directors or affiliates) except as set forth in Section 8.2 or 8.5
hereof.
8.2 Brokers' and Finders' Fees.
8.2.1 Purchaser has not retained or authorized any investment
banker, broker, finder or other intermediary to act on behalf of Purchaser who
might be entitled to any fee or commission in connection with the transactions
contemplated under this Agreement.
8.2.2 Seller has not retained or authorized any investment
banker, broker, finder or other intermediary to act on behalf of Seller who
might be entitled to any fee or commission in connection with the transactions
contemplated under this Agreement.
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8.2.3 Purchaser, on the one hand, and Seller, on the other
hand, agree to indemnify, defend and hold the other party and their respective
affiliates harmless from and against any Losses incurred by them as a result of
Purchaser's or Seller's, respectively, dealings with any such person, as the
case may be; provided, however, that Purchaser agrees to indemnify, defend and
hold Seller harmless from and against any claim brought by Marine Design, Inc.
in connection with the sale of the Vessel to Purchaser hereunder and in the
event of any such action, such action shall not give rise to any rights of
Purchaser pursuant to Section 7.1.3 hereof.
8.3 Survival of Representations and Warranties and Other Obligations.
No representations and warranties made by the parties in this Agreement or in
any certificate, schedule, statement, document or instrument required to be
furnished hereunder or in connection herewith shall survive the Closing.
8.4 Sales and Transfer Taxes, Documentary Fees, etc. Purchaser shall
pay all federal, state and local sales, conveyance and transfer taxes, if any,
due as a result of the purchase, sale or transfer of the Vessel in accordance
herewith whether imposed by law on Seller or Purchaser. Purchaser shall pay all
applicable United States Coast Guard documentation fees.
8.5 Expenses. Each party hereto shall pay its own expenses incidental
to the preparation of this Agreement, the carrying out of the provisions of this
Agreement and the consummation of the transactions contemplated hereby;
provided, however, that in the event that Seller fails or is unable to deliver
to Purchaser the Vessel and Purchaser is ready, willing and able to purchase the
Vessel and perform its obligations under this Agreement, then Seller shall
reimburse Purchaser for all reasonable actual costs incurred as part of its due
diligence review following receipt of Bankruptcy Court approval, including
engineering, legal, accounting and other professional fees and expenses solely
from the proceeds of any subsequent sale of the Vessel; provided, further, that
in no event shall Purchaser be entitled to reimbursement hereunder for any
amounts in excess of $300,000. These costs shall not be payable if (a) the
Trustee is not authorized to sell the Vessel free and clear or (b) if the Court
does not order that Delta Queen shall acquire good, valid, marketable, sole and
exclusive title free of any defects of title whatsoever, each as contemplated in
the proposed order.
8.6 Entire Agreement. This Agreement, sets forth the entire
understanding of the parties hereto with respect to the transactions
contemplated hereby. It shall not be amended or modified except by written
instrument duly executed by all of the parties hereto. Any and all previous
agreements and understandings between or among the parties regarding the subject
matter hereof, whether written or oral, are superseded by this Agreement.
8.7 Assignment and Binding Effect. This Agreement may not be assigned
prior to the Closing by any party hereto without the prior written consent of
the other parties; provided, however, that Purchaser may assign this Agreement
to an affiliate of Purchaser
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without obtaining such consent so long as Purchaser continues to be obligated in
accordance with the terms of this Agreement and agrees to cause such affiliate
to perform Purchaser's obligations under this Agreement.
8.8 Waiver. Any term or provision of this Agreement may be waived at
any time by the party entitled to the benefit thereof by a written instrument
duly executed by such party.
8.9 Notices. All notices required to be given under the terms of this
Agreement or which any of the parties desires to give hereunder shall be in
writing and delivered personally, by overnight delivery with a nationally
recognized delivery service or sent by registered or certified mail, postage
prepaid, return receipt requested or sent by facsimile (and confirmed by
registered or certified mail or overnight delivery), each addressed as follows:
As to Seller: Richard C. Breeden, Trustee
The Bennet Funding Group, Inc.
Two Clinton Square
Syracuse, NY 13202
Fax: (315) 422-9361
with a copy to: Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017-3909
Attn: M. O. Sigal, Jr., Esq.
Fax: (212) 455-2502
As to Purchaser: The Delta Queen Steamboat Co., c/o
American Classic Voyages Co.
2 North Riverside Plaza, Suite 200
Chicago, IL 60606
Attn: Jordan B. Allen, Esq.,
Executive Vice President and
General Counsel
Fax: (312) 466-6151
with a copy to: Seyfarth, Shaw, Fairweather & Geraldson
55 East Monroe Street, Suite 4200
Chicago, Illinois 60603
Attn: David S. Stone, Esq.
Fax: (312) 269-8869
or to such other address and to the attention of such other person as the party
to whom such notice is to be given may have theretofore designated in a notice
to the other party hereto, except that Purchaser shall not be required to notify
more than one person at more than one address to give notice to all of Seller.
Any notice given in accordance with the foregoing shall be deemed to have been
given when delivered in person or by overnight delivery against
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receipt or received by facsimile or, if mailed, on the third business day next
following the date on which it shall have been deposited in the mails.
8.10 Governing Law. This Agreement shall be governed by and interpreted
and enforced in accordance with the internal laws of the State of New York.
Seller and Purchaser agree that any dispute, action or other proceeding arising
out of or otherwise relating to this Agreement shall be litigated in the
Bankruptcy Court.
8.11 No Third Party Beneficiaries. The representations, warranties,
covenants and agreements contained in this Agreement are for the sole benefit of
the parties hereto and they shall not be construed as conferring any rights on
any other persons.
8.12 Interpretation. All section headings contained in this Agreement
are for convenience of reference only, do not form a part of this Agreement and
shall not affect in any way the meaning or interpretation of this Agreement.
Words used herein, regardless of the number and gender specifically used, shall
be deemed and construed to include any other number, singular or plural, and any
other gender, masculine, feminine, or neuter, as the context requires. Any
reference to a "person" herein shall include an individual, firm, corporation,
partnership, trust, governmental authority or body, association, unincorporated
organization or any other entity; any use of the term "include" or "including"
shall mean "including without limitation"; and any use of "hereof," "hereto,"
"herein" or "hereunder" shall mean this Agreement.
8.13 Schedules and Exhibits. All schedules and exhibits referred to
herein are intended to be and hereby are specifically made a part of this
Agreement.
8.14 Severability. Any provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability, and any such invalidity or unenforceability
shall not invalidate or render unenforceable the remaining provisions hereof,
and any such invalidity or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
8.15 Counterparts; Facsimile. This Agreement may be executed in any
number of counterparts and any party hereto may execute any such counterpart,
each of which when executed and delivered shall be deemed to be an original and
all of which counterparts taken together shall constitute but one and the same
instrument. The parties hereto agree that facsimile transmission of original
signatures shall constitute and be accepted as original signatures. This
Agreement shall become binding when one or more counterparts taken together
shall have been executed and delivered by the parties. It shall not be necessary
in making proof of this Agreement or any counterpart hereof to produce or
account for any of the other counterparts.
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8.16 Actions by Trustee. The parties agree that Richard C. Breeden is
executing this Agreement not in his individual capacity, but solely as Trustee
and that Richard C. Breeden shall not have any personal responsibility or
liability hereunder.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
RICHARD C. BREEDEN, not
individually, but as bankruptcy
trustee for Chapter 11 Bankruptcy
estates for THE BENNET FUNDING
GROUP, INC., BENNETT RECEIVABLES
CORPORATION, BENNETT RECEIVABLES
CORPORATION II, BENNETT MANAGEMENT &
DEVELOPMENT CORPORATION, THE
PROCESSING CENTER, INC., RESORT
SERVICE COMPANY, INC., AMERICAN
MARINE INTERNATIONAL, LTD., and
ALOHA CAPITAL CORPORATION
By: /s/ Richard C. Breeden
------------------------------
Richard C. Breeden, Trustee
THE DELTA QUEEN STEAMBOAT CO.
By: /s/ Jordan B. Allen
-----------------------------
Title: Executive Vice President
-----------------------------
