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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).
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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
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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
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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
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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 000 XXXXXXX XXXXXX, XXXXXX, XXX
XXXX 00000, 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.
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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.
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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 X. Xxxxx
----------------------------
Name: Jordan X. Xxxxx
Title: Senior Vice President
AMERICAN CLASSIC VOYAGES CO.
(formerly known as The Delta
Queen Steamboat Co.)
By: \s\ Jordan X. Xxxxx
-----------------------------
Name: Jordan X. Xxxxx
Title: Senior Vice President
CRUISE AMERICA TRAVEL,
INCORPORATED
By: \s\ Jordan X. Xxxxx
-----------------------------
Name: Jordan X. Xxxxx
Title: Senior Vice President
GREAT RIVER CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co.,
a Managing Member
By: \s\ Jordan X. Xxxxx
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Name: Jordan X. Xxxxx
Title: Senior Vice President
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By: DQSB II, Inc., a Managing Member
By: \s\ Jordan X. Xxxxx
--------------------------------
Name: Jordan X. Xxxxx
Title: Senior Vice President
GREAT OCEAN CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co.,
a Managing Member
By: \s\ Jordan X. Xxxxx
------------------------------
Name: Jordan X. Xxxxx
Title: Senior Vice President
By: DQSB II, Inc., a Managing Member
By: \s\ Jordan X. Xxxxx
--------------------------------
Name: Jordan X. Xxxxx
Title: Senior Vice President
DQSB II, INC.
By: \s\ Jordan X. Xxxxx
--------------------------------
Name: Jordan X. Xxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK, as Agent
By: \s\ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
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