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EXHIBIT 10.vii
EXECUTION COPY
AMENDMENT NO. 1
to
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of September 14, 2000
This Amendment No. 1 (this "Amendment"), dated as of August 14, 2001,
to the Amended and Restated Credit Agreement, dated as of September 14, 2000, is
entered into by THE DELTA QUEEN STEAMBOAT CO., the financial institutions from
time to time parties thereto and The Chase Manhattan Bank, as Agent (the "Credit
Agreement"). Capitalized terms used herein, but not otherwise defined herein,
shall have the respective meanings assigned to such terms in the Credit
Agreement.
1. Amendment of Credit Agreement. The Borrower, the Lenders and the
Agent have agreed to amend the Credit Agreement, and accordingly, effective as
of August 14, 2001 (except with respect to Amendments (i), (ii), (xii) and
(xiii) below, which shall be effective as of June 30, 2001), upon satisfaction
of the conditions precedent set forth below and in reliance upon the
representations and warranties set forth herein, the Credit Agreement is hereby
amended by:
(i) deleting the definition of "Adjusted EBITDA"
appearing in Section 1.01 thereof in its entirety and replacing the
following therefor:
"'Adjusted EBITDA' for any period shall mean (a) EBITDA for the
Consolidated Borrower Group minus (b) EBITDA for the Consolidated
DQCV Group, in each case, determined for or incurred in such
period.";
(ii) deleting the definitions of "Bank Indebtedness
Leverage Ratio" and Bank Interest Coverage Ratio" appearing in Section
1.01 thereof in their entirety;
(iii) deleting the definition of "Maturity Date" appearing
in Section 1.01 thereof in its entirety and replacing the following
therefor: "'Maturity Date' shall mean the Termination Date.";
(iv) amending the definition of "Termination Date"
appearing in Section 1.01 thereof by deleting the date "September 13,
2001" appearing in clause (a) thereof and by replacing the date "March
31, 2002" therefor;
(v) deleting Section 2.03(e)(i) thereof in its entirety
and replacing the following therefor:
"(i) The Applicable Base Rate Margin shall be 1.75% per
annum, and the Applicable Eurodollar Rate Margin shall be 2.75%
per annum; provided, however, that for each day on which the
aggregate
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amount of the Lenders' Revolving Credit Exposures on such day
exceeds 50% of the aggregate amount of the Lenders' Commitments
on such day (or, on and after the Termination Date, the aggregate
amount of Lenders' Commitments immediately prior to the
Termination Date), the Applicable Base Rate Margin shall be 2.00%
per annum, and the Applicable Eurodollar Rate Margin shall be
3.00% per annum.";
(vi) amending Section 2.05(a) thereof by deleting the
percentage "0.50%" appearing therein and by replacing the percentage
"0.75%" therefor;
(vii) amending Section 5.01(a) thereof by deleting the
phrase "fifty-five (55)" appearing therein and by replacing the phrase
"forty-five (45)" therefor (which, for the avoidance of doubt, shall
be first applicable with respect to the fiscal quarter ending
September 30, 2001);
(viii) amending Section 5.01(b) thereof by deleting the
phrase "one hundred (100)" appearing therein and by replacing the
phrase "ninety (90)" therefor;
(ix) deleting Section 5.01(c) thereof in its entirety and
replacing the following therefor:
"(c) Budget and Business Plan. Promptly upon completion, but
in any event not later than thirty (30) days after the end of
each month ending from and after August 30, 2001, a copy of the
operating budget and projections by the Borrower of the income
statement, balance sheet and cash flow of each of (i) the
Consolidated Borrower Group, taken as a whole, (ii) the
Consolidated DQCV Group, taken as a whole, and (iii) those
Persons which are members of the Consolidated Borrower Group but
not members of the Consolidated DQCV Group, taken as a whole, for
each succeeding month through December 2002, in each case, in the
form customarily prepared by the Borrower's management, such
operating budget and projected financial statements to be
accompanied by an Officer's Certificate of Borrower stating that
such operating budget and projected financial statements have
been prepared on the basis of sound financial planning practice
and that such officer has no reason to believe they are incorrect
or misleading in any material respect.";
(x) deleting Section 7.05(i) in its entirety and
replacing the following therefor:
"(i) Restricted Junior Payments constituting tax sharing payments
or allocated overhead payments by Borrower or a Borrower
Subsidiary to Parent made prior to the Termination Date, provided
that no such Restricted Junior Payment shall be permitted to be
made if before or after
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making such Restricted Junior Payment an Event of Default or a
Potential Event of Default has occurred and is continuing or
would result therefrom, provided, further that Restricted Junior
Payments constituting allocated overhead expenses shall not
exceed $4,000,000 for the fiscal quarter ending September 30,
2001 or $5,000,000 for each of the fiscal quarters ending
December 31, 2001 and March 31, 2002;";
(xi) deleting Section 7.05(ii) thereof in its entirety;
(xii) deleting Section 8.01 thereof in its entirety and
replacing the following therefor:
"Minimum Adjusted EBITDA. Borrower shall not permit Adjusted
EBITDA calculated for the fiscal quarters ending September 30,
2001 and December 31, 2001 to be less than $2,000,000 and
$1,000,000, respectively."; and
(xiii) deleting Section 8.02 thereof in its entirety.
2. Effectiveness. This Amendment shall become effective as of the
date on which the Agent shall have received (i) a copy of this Amendment duly
executed by the Borrower and the Requisite Lenders, together with the Consent
attached hereto executed by the Parent and the Borrower Subsidiaries named
thereon, (ii) a copy of that certain Waiver, dated as of August 14, 2001 (the
"Waiver"), duly executed by the Borrower and the Requisite Lenders, together
with the Consent attached hereto executed by the Parent and the Borrower
Subsidiaries named thereon, (iii) the repayment described in Section 1 of the
Waiver, and (iv) the structuring fee payable pursuant to that certain Fee
Letter, dated as of August 14, 2001, among the Borrower, the Agent and X.X.
Xxxxxx Securities Inc.
3. Representation and Warranty. The Borrower hereby represents and
warrants that this Amendment constitutes the legal, valid and binding obligation
of the Borrower, enforceable against the Borrower in accordance with its terms,
and that after giving effect to this Amendment, no Event of Default or Potential
Event of Default has occurred and is continuing.
4. Effect Upon Loan Documents. Upon the effectiveness of this
Amendment, each reference in the Credit Agreement to "this Agreement,"
"hereunder," "hereof," "herein," or words of like import, and each reference in
the other Loan Documents to "the Credit Agreement," "thereunder," "thereof,"
"therein," or words of like import, shall mean and be a reference to the Credit
Agreement as amended hereby. Except as expressly set forth herein, all terms and
conditions of the Credit Agreement, the other Loan Documents and the other
documents and agreements executed by the Borrower in connection therewith shall
remain in full force and effect and are hereby ratified and confirmed in all
respects. This Amendment shall, and shall be deemed to be, an amendment to each
of (i) that certain Preferred Ship Mortgage with respect to the vessel "Delta
Queen", dated as of February 25, 1999, as amended (the "Delta Queen Mortgage"),
among Great River Cruise Line, L.L.C. ("GRCL"), as
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mortgagor, and the Agent, as mortgagee, (ii) that certain Trust Indenture dated
as of February 25, 1999, as amended (the "GRCL Indenture"), among GRCL, as
mortgagor, the financial institutions party thereto and the Agent, as trustee,
(iii) that certain Preferred Ship Mortgage with respect to the vessel
"Mississippi Queen", dated as of February 25, 1999, as amended (the "Mississippi
Queen Mortgage" and collectively with the Delta Queen Mortgage, the
"Mortgages"), among Great Ocean Cruise Line, L.L.C. ("GOCL"), as mortgagor, and
the Agent, as mortgagee, and (iv) that certain Trust Indenture dated as of
February 25, 1999, as amended (the "GOCL Indenture" and together with the GRCL
Indenture, the "Trust Indentures"), among GRCL, as mortgagor, the financial
institutions party thereto and the Agent, as trustee, in each case, to the
extent the terms of the Mortgages or the Trust Indentures are inconsistent with
this Amendment. The Borrower shall promptly execute, or shall cause to be
executed, such amendments to the Mortgages and the Trust Indentures as the Agent
shall reasonably request and furnish to the Borrower in order to maintain the
perfection and priority of the Lenders' Lien on the Collateral.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAW
PROVISIONS) AND DECISIONS OF THE STATE OF NEW YORK.
6. Counterparts. This Amendment may be executed by the parties
hereto on separate counterparts and each of said counterparts taken together
shall be deemed to constitute one and the same instrument.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date set forth above.
THE DELTA QUEEN STEAMBOAT CO.,
as Borrower
By: _______________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Agent and as a Lender
By: _______________________________
Name:
Title:
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CONSENT
Each of the undersigned, as a party to certain Collateral Documents in
connection with the Credit Agreement referred to in the foregoing Amendment
dated as of August 14, 2001, hereby consents to such Amendment and confirms and
agrees that (i) each of the Collateral Documents is and shall continue to be in
full force and effect and is hereby ratified and confirmed in all respects, and
(ii) all of the Collateral described in the Collateral Documents does and shall
continue to secure the payment of all of the Obligations. Capitalized terms used
herein are used as defined in the Credit Agreement.
CRUISE AMERICA TRAVEL, INCORPORATED
DQSC PROPERTY CO.
DQSB II, INC.
By: __________________________
Name: Jordan X. Xxxxx
Title: Executive Vice President
GREAT RIVER CRUISE LINE, L.L.C.
GREAT OCEAN CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co.,
a Managing Member
By: __________________________
Name: Jordan X. Xxxxx
Title: Executive Vice President
By: DQSB II, INC., a Managing Member
By: __________________________
Name: Jordan X. Xxxxx
Title: Executive Vice President
AMERICAN CLASSIC VOYAGES CO.
By: _____________________________
Name: Jordan X. Xxxxx
Title: Executive Vice President
