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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 xxx 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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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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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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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, xxx 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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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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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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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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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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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 XXXXXXXX-XXXX CORPORATION SYSTEM, INC. THE COMPANY'S
REGISTERED AGENT, WHOSE ADDRESS IS 0000 XXXXXX XXXX, XXXXXXXXXX, XXXXXXXX 00000,
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.
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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.
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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 X. Xxxxx
-------------------------------
Name: Jordan X. Xxxxx
Title: Senior Vice President
Accepted:
THE CHASE MANHATTAN BANK, as Agent
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Title: Vice President
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CERTIFICATE OF ACKNOWLEDGMENT
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 26th day of March, 1997, personally appeared Jordan X. Xxxxx
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/ Xxxxxxx X. Xxxx-Xxxxx
---------------------------
Notary Public
My Commission Expires: 11/22/98
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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 X. Xxxxx
By: -------------------------
Name: Jordan X. Xxxxx
Title: Senior Vice President
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