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EXHIBIT 4.(ii)(a)(38)
LIMITED LIABILITY COMPANY PLEDGE AGREEMENT
THIS LIMITED LIABILITY COMPANY PLEDGE AGREEMENT ("AGREEMENT") is made
as of March 26, 1997 by THE DELTA QUEEN STEAMBOAT CO., a Delaware corporation
("PLEDGOR"), a member of Great River Cruise Line, L.L.C., a Delaware limited
liability company ("GRCL"), and a member of Great Ocean Cruise Line, L.L.C., a
Delaware limited liability company ("GOCL"), and The Chase Manhattan Bank, as
agent (the "AGENT"), for its benefit and the benefit of the Holders of Secured
Obligations (as such term is defined in the Credit Agreement referred to below).
Capitalized terms used herein and not herein defined shall have the same
meanings assigned to such terms in the Credit Agreement described below.
R E C I T A L S:
A. The Pledgor, certain financial institutions (such financial
institutions being herein referred to collectively as the "LENDERS"), and the
Agent as one of the Lenders and as the agent for the Lenders have entered into
the Third Amended and Restated Credit Agreement dated as of April 22, 1996, as
amended through the date hereof (as amended, restated, supplemented or modified
from time to time, the "CREDIT AGREEMENT"), pursuant to which the Lenders have
agreed, subject to certain conditions precedent, to make loans and other
financial accommodations to the Pledgor from time to time.
B. It is a condition precedent to the making of the loans to the
Pledgor under the Credit Agreement that this Agreement shall be executed and
delivered by the Pledgor to the Lender and that this Agreement shall be in full
force and effect.
C. The Pledgor desires to secure its "LIABILITIES" (as
hereinafter defined) to the Lender by the grant to the Lender of a first
priority security interest in the Pledged Collateral (as hereinafter defined).
ACCORDINGLY, for and in consideration of the foregoing and of any
financial accommodations or extensions of credit (including, without limitation,
any loan or advance by renewal, refinancing or extension of the agreements
described hereinabove or otherwise) heretofore, now or hereafter made to or for
the benefit of the Pledgor pursuant to the Credit Agreement or any other
agreement, instrument or document executed pursuant to or in connection
therewith, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Pledgor and the Agent hereby
agree as follows:
1. Pledge. The Pledgor hereby pledges, grants and assigns to
the Agent, for the benefit of the Agent and the Holders of Secured Obligations,
and grants to the Agent for the benefit of the Agent and the Holders of Secured
Obligations, a security interest in, the following (collectively, the "PLEDGED
COLLATERAL"):
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(a) The membership interest of Pledgor in GRCL and in GOCL now or at
any time or times hereafter owned by the Pledgor, and any certificates
representing such membership interest in GRCL or in GOCL (such membership
interests being identified on Exhibit A attached hereto and made a part
hereof), all of the right, title and interest of the Pledgor in, to and
under its respective percentage interest, shares or units as a member
including, without limitation, Pledgor's interest in (or allocation of) the
profits, losses, income, gains, deductions, credits or similar items of
GRCL and of GOCL and the right to receive distributions of GRCL's and
GOCL's cash, other property, assets, and all options and warrants for the
purchase of membership interests, whether now existing or hereafter
arising, whether arising under the terms of the Certificate of Formation,
the Amended and Restated Limited Liability Company Agreement or any of the
other organizational documents (such documents hereinafter collectively
referred to as the "OPERATING AGREEMENTS") of GRCL or of GOCL, or at law or
in equity, or otherwise and any and all of the proceeds thereof (all of
said membership interests, certificates, and warrants being hereinafter
collectively referred to as the "PLEDGED MEMBERSHIP INTEREST") herewith
delivered to the Agent accompanied by the certificates or other writings
evidencing the same, accompanied by duly executed instruments of transfer
or assignments in blank, all in form and substance satisfactory to the
Agent (such instruments being collectively referred to hereinafter as the
"POWERS") duly executed in blank, and all distributions, cash, instruments
and other property from time to time received, receivable or otherwise
distributed in respect of, or in exchange for, any or all of the Pledged
Membership Interest;
(b) Any additional membership interests in GRCL or GOCL from time to
time acquired by the Pledgor in any manner, and any certificates
representing such additional membership interests or any additional
percentage interests, shares, units, options or warrants of membership
interests in GRCL or in GOCL (any such additional interests shall
constitute part of the Pledged Membership Interest and the Agent is
irrevocably authorized to amend Exhibit A from time to time to reflect such
additional shares), and all options, warrants, distributions, cash,
instruments and other rights and options from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of such shares and will promptly thereafter deliver to the Lender, a
certificate duly executed by the Pledgor describing such percentage
interests, certificates, units, options or warrants and certifying that the
same have been duly pledged hereunder;
(c) The property and interests in property described in Section 3
below; and
(d) All proceeds of the foregoing.
2. Security for Liabilities. The Pledged Collateral secures the
prompt payment, performance and observance of (i) the Obligations and (ii) the
Pledgor's obligations and liabilities under this Agreement and each agreement,
document or instrument executed pursuant to or in connection with this Agreement
(all such
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obligations and liabilities of the Pledgor and the Borrower now or hereafter
existing being hereinafter referred to as the "LIABILITIES").
3. Pledged Collateral Adjustments. If, during the term of this
Agreement:
(a) Any reclassification, readjustment or other change is declared or
made in the capital structure of GRCL or of GOCL, or any option included
within the Pledged Collateral is exercised, or both, or
(b) Any subscription, warrants or any other rights or options shall
be issued in connection with the Pledged Collateral,
then all new, substituted and additional membership interests, certificates,
warrants, rights, options or other securities, issued by reason of any of the
foregoing, shall be immediately delivered to and held by the Agent under the
terms of this Agreement and shall constitute Pledged Collateral hereunder;
provided, however, that nothing contained in this Section 3 shall be deemed to
permit any distribution, issuance of additional membership interests, warrants,
rights or options, reclassification, readjustment or other change in the
capital structure of GRCL or of GOCL which is not expressly permitted in the
Credit Agreement.
4. Subsequent Changes Affecting Pledged Collateral. The Pledgor
represents and warrants that it has made its own arrangements for keeping itself
informed of changes or potential changes affecting the Pledged Collateral
(including, but not limited to, rights to convert, rights to subscribe, cash
distributions or other distributions, reorganization or other exchanges, tender
offers and voting rights), and the Pledgor agrees that neither the Agent nor any
of the Holders of Secured Obligations shall have any obligation to inform the
Pledgor of any such changes or potential changes or to take any action or omit
to take any action with respect thereto. The Agent may, after the occurrence of
an Event of Default, without notice and at its option, transfer or register the
Pledged Collateral or any part thereof into its or its nominee's name with or
without any indication that such Pledged Collateral is subject to the security
interest hereunder. In addition, the Agent may at any time exchange
certificates or instruments representing or evidencing Pledged Membership
Interests for certificates or instruments of smaller or larger denominations.
5. Representations and Warranties. The Pledgor represents and
warrants as follows:
(a) The Pledgor is the sole legal and beneficial owner of the
membership interests in GRCL and in GOCL pledged to the Agent pursuant to
this Agreement, free and clear of any Lien except for the security interest
created by this Agreement;
(b) This Agreement has been duly and validly authorized, executed and
delivered by Pledgor and constitutes the legal, valid and binding
obligation of the Pledgor enforceable against the Pledgor in accordance
with its terms except as enforcement may be limited by bankruptcy,
insolvency and other similar laws affecting the enforcement of creditors'
rights generally and by moratorium laws from time to time in effect and
general equitable principles;
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(c) Such Pledgor is the direct beneficial owner of the Pledged
Collateral hereby pledged by it;
(d) The Pledgor owns such Pledged Collateral free and clear of any
Lien, except for the pledge and security interest granted to the Agent and
the Holders of Secured Obligations hereunder;
(e) The Pledgor shall cause GRCL and GOCL to make a notation on
their respective records, which notation shall indicate the security
interest granted hereby, and such Pledgor agrees to execute and file
financing statements pursuant to the Uniform Commercial Code as the Agent
may request to perfect the security interest granted hereby, and such
Pledgor agrees to execute and deliver to GRCL and to GOCL a Pledge
Instruction in the form of Exhibit B hereto;
(f) The pledge of the Pledged Collateral by the Pledgor does not
violate (1) the Operating Agreements of GRCL or of GOCL or any of the other
organizational documents of GRCL or of GOCL; (2) the certificate of
incorporation or by-laws of the Pledgor; (3) any indenture, mortgage, loan
or credit agreement to which the Pledgor, GRCL or GOCL is a party or by
which any of their respective properties or assets may be bound; or (4) any
restriction on such transfer or encumbrance of such Pledged Collateral;
(g) Except as set forth in the Operating Agreements, there are no
restrictions upon the voting rights associated with, or upon the transfer
of, any of the Pledged Collateral;
(h) Except as set forth in the Operating Agreements, the Pledgor has
the right to vote, pledge, assign and grant a security interest in or
otherwise transfer such Pledged Collateral free of any Liens;
(i) No authorization, approval, or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
either (i) for the pledge of the Pledged Collateral pursuant to this
Agreement or for the execution, delivery or performance of this Agreement
by the Pledgor or (ii) for the exercise by the Agent of the voting or other
rights provided for in this Agreement or the remedies in respect of the
Pledged Collateral pursuant to this Agreement (except as may be required in
connection with such disposition by laws affecting the offering and sale of
securities generally);
(j) The pledge of the Pledged Collateral pursuant to this Agreement
creates a valid and perfected first priority security interest in the
Pledged Collateral, in favor of the Agent for the benefit of the Agent and
the Holders of Secured Obligations, securing the payment and performance of
the Liabilities;
(k) The pledge of the Pledge Collateral pursuant to this Agreement
constitutes a complete assignment of the Pledged Collateral pursuant to 6
Del. Code Xxx. Section 18-702 (1996).
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6. Voting Rights and Other Powers. During the term of this
Agreement, and except as provided in this Section 6 below, the Pledgor shall
have (i) the right to vote the Pledged Membership Interest on all questions in a
manner not inconsistent with the terms of this Agreement, the Credit Agreement
and any other agreement, instrument or document executed pursuant thereto or in
connection therewith, and (ii) the right to be the member and manager of GRCL
and/or GOCL, and shall be entitled to exercise all managerial, election and
other rights relating to the Pledged Collateral. After the occurrence or during
the continuance of an Event of Default, the Agent or the Agent's nominee may, at
the Agent's or such nominee's option and following written notice ("ELECTION
NOTICE") from the Agent to the Pledgor (x) exercise, or direct such Pledgor as
to the exercise of (whereupon such Pledgor shall exercise as so directed), all
voting, consent, managerial, election and other membership and manager rights to
the Pledged Collateral of the Pledgor; such authorization shall constitute an
irrevocable voting proxy from the Pledgor to the Agent or, at the Agent's
option, to the Agent's nominee; and (y) exercise, or direct such Pledgor as to
the exercise of (whereupon the Pledgor shall exercise as so directed), any and
all rights of conversion, exchange, subscription or any other rights, privileges
or options pertaining to the Pledged Collateral of the Pledgor as if the Agent
were the absolute owner thereof, all without liability except to account for
property actually received by it, but the Agent shall have no duty to exercise
any of the aforesaid rights, privileges or options and shall not be responsible
for any failure so to do or delay in so doing. Under no circumstances shall the
Agent have, or be deemed to have or to have had, any right to exercise, or to
direct the Pledgor to exercise, any voting, managerial, election or other rights
of an owner of the Pledged Collateral, or arising under the Pledged Collateral,
unless and until the Agent shall have delivered to such Pledgor an Election
Notice as described hereinabove.
7. Cash and Other Distributions. (a) So long as no Event of Default
or Potential Event of Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to receive and retain any and all
cash distributions and interest paid in respect of the Pledged Collateral
(including a distribution of net cash flow) to the extent such
distributions are not prohibited by the Credit Agreement, provided,
however, that any and all
(A) distributions and interest paid or payable other than in
cash with respect to, and instruments and other property received,
receivable or otherwise distributed with respect to, or in exchange
for, any of the Pledged Collateral;
(B) other distributions paid or payable in cash with respect to
any of the Pledged Collateral on account of a partial or total
liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in surplus; and
(C) cash paid, payable or otherwise distributed with respect to
principal of, or in redemption of, or in exchange for, any of the
Pledged Collateral;
shall be Pledged Collateral, and shall be forthwith delivered to the Agent
to hold, for the benefit of the Agent and the Holders of Secured
Obligations, as Pledged
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Collateral and shall, if received by the Pledgor, be received in trust
for the Agent, for the benefit of the Agent and the Holders of Secured
Obligations, be segregated from the other property or funds of the
Pledgor, and be delivered immediately to the Agent as Pledged
Collateral in the same form as so received (with any necessary
endorsement); and
(ii) The Agent shall execute and deliver (or cause to be
executed and delivered) to the Pledgor all such proxies and other
instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to receive the distributions or interest payments
which it is authorized to receive and retain pursuant to clause (i)
above.
(b) After the occurrence and during the continuance of an Event of
Default or Potential Event of Default:
(i) All rights of the Pledgor to receive the distributions and
interest payments which it would otherwise be authorized to receive
and retain pursuant to Section 7(a)(i) hereof shall cease, and all
such rights shall thereupon become vested in the Agent, for the
benefit of the Agent and the Holders of Secured Obligations, which
shall thereupon have the sole right to receive and hold as Pledged
Collateral such distributions and interest payments;
(ii) All distributions and interest payments which are received
by the Pledgor contrary to the provisions of clause (i) of this
Section 7(b) shall be received in trust for the Agent, for the benefit
of the Agent and the Holders of Secured Obligations, shall be
segregated from other funds of the Pledgor and shall be paid over
immediately to the Agent as Pledged Collateral in the same form as so
received (with any necessary endorsements).
(c) All sums of money that are delivered to the Agent pursuant to
this Section 7 shall be deposited into an interest bearing account with the
Agent (the "CASH COLLATERAL ACCOUNT"). Some or all of the funds from time
to time in the Cash Collateral Account may be invested in time deposits,
including, without limitation, certificates of deposit issued by the Agent
(such certificates of deposit or other time deposits being hereinafter
referred to, collectively, as "TIME DEPOSITS"), that are satisfactory to
the Agent after consultation with the Pledgor. Interest earned on the Cash
Collateral Account and on the Time Deposits, and the principal of the Time
Deposits at maturity that is not invested in new Time Deposits, shall be
deposited in the Cash Collateral Account. The Cash Collateral Account, all
sums from time to time standing to the credit of the Cash Collateral
Account, any and all Time Deposits, any and all instruments or other
writings evidencing Time Deposits and any and all proceeds of any thereof
are hereinafter referred to as the "Cash Collateral" and shall constitute
Pledged Collateral hereunder. Except as otherwise expressly provided in
Section 13, the Pledgor shall have no right to withdraw sums from the Cash
Collateral Account, to receive any of the Cash Collateral or to require the
agent to part with the Agent's possession of any instruments or other
writings evidencing any Time Deposits.
8. Transfers and Other Liens. The Pledgor agrees that it will not
(i) sell or otherwise dispose of, or grant any option with respect to, any of
the Pledged Collateral without the prior written consent of the Agent, or (ii)
create or permit to exist
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any Lien upon or with respect to any of the Pledged Collateral, except for the
security interest under this Agreement. To the extent additional or different
members of GRCL or of GOCL are permitted, Pledgor shall cause as a condition to
permitting such entity to become a member that the new member consent to (i) the
terms of this Agreement; (ii) the Pledge and assignment of the Pledged
Collateral; and (ii) the rights granted hereunder for the Agent to become the/a
member of GRCL or of GOCL at its election.
9. Remedies. (a) The Agent shall have, in addition to any other
rights given under this Agreement or by law, all of the rights and remedies with
respect to the Pledged Collateral of a secured party under the Uniform
Commercial Code as in effect in the State of New York. After the occurrence and
during the continuance of an Event of Default and following written notice to
the Pledgor, the Agent (personally or through an agent) is hereby authorized and
empowered to transfer and register in its name or in the name of its nominee the
whole or any part of the Pledged Collateral, to exercise all voting rights with
respect thereto, to collect and receive all cash distributions and other
distributions made thereon, and to otherwise act with respect to the Pledged
Collateral as though the Agent were the outright owner thereof and the sole
member and manager of GRCL and of GOCL, the Pledgor hereby irrevocably
constituting and appointing the Agent as the proxy and attorney-in-fact of the
Pledgor, with full power of substitution to do so, such proxy becoming effective
upon the occurrence of an Event of Default and following written notice thereof;
provided, however, that the Agent shall have no duty to exercise any such right
or to preserve the same and shall not be liable for any failure to do so or for
any delay in doing so. In addition, after the occurrence of an Event of
Default, the Agent shall have such powers of sale and other powers as may be
conferred by applicable law. With respect to the Pledged Collateral or any part
thereof which shall then be in or shall thereafter come into the possession or
custody of the Agent or which the Agent shall otherwise have the ability to
transfer under applicable law, the Agent may, in its sole discretion, without
notice except as specified below, after the occurrence of an Event of Default,
sell or cause the same to be sold at any exchange, broker's board or at public
or private sale, in one or more sales or lots, at such price as the Agent may
deem best, for cash or on credit or for future delivery, without assumption of
any credit risk, and the purchaser of any or all of the Pledged Collateral so
sold shall thereafter own the same, absolutely free from any claim, encumbrance
or right of any kind whatsoever. The Agent and each of the Holders of Secured
Obligations may, in its own name, or in the name of a designee or nominee, buy
the Pledged Collateral at any public sale and, if permitted by applicable law,
buy the Pledged Collateral at any private sale. The Pledgor will pay to the
Agent all reasonable expenses (including, without limitation, court costs and
reasonable attorneys' and paralegals' fees and expenses) of, or incidental to,
the enforcement of any of the provisions hereof. The Agent agrees to distribute
any proceeds of the sale of the Pledged Collateral in accordance with the Credit
Agreement and the Pledgor shall remain liable for any deficiency following the
sale of the Pledged Collateral.
(b) Unless any of the Pledged Collateral threatens to decline
speedily in value or is or becomes of a type sold on a recognized market, the
Agent will give the Pledgor reasonable notice of the time and place of any
public sale thereof, or of the time after which any private sale or other
intended disposition is to be made. Any sale of the Pledged Collateral
conducted in conformity with reasonable commercial practices of banks,
commercial finance companies, insurance companies or other financial
institutions disposing of property similar to the Pledged Collateral shall be
deemed to be
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commercially reasonable. Notwithstanding any provision to the contrary
contained herein, the Pledgor agrees that any requirements of reasonable notice
shall be met if such notice is received by the Pledgor as provided in Section 25
below at least ten (10) Business Days before the time of the sale or
disposition; provided, however, that Agent may give any shorter notice that is
commercially reasonable under the circumstances. Any other requirement of
notice, demand or advertisement for sale is waived, to the extent permitted by
law.
(c) In view of the fact that federal and state securities laws may
impose certain restrictions on the method by which a sale of the Pledged
Collateral may be effected after a Default, the Pledgor agrees that after the
occurrence of an Event of Default, the Agent may, from time to time, attempt to
sell all or any part of the Pledged Collateral by means of a private placement
restricting the bidders and prospective purchasers to those who are qualified
and will represent and agree that they are purchasing for investment only and
not for distribution. In so doing, the Agent may solicit offers to buy the
Pledged Collateral, or any part of it, from a limited number of investors deemed
by the Agent, in its reasonable judgment, to be financially responsible parties
who might be interested in purchasing the Pledged Collateral. If the Agent
solicits such offers from not less than four (4) such investors, then the
acceptance by the Agent of the highest offer obtained therefrom shall be deemed
to be a commercially reasonable method of disposing of such Pledged Collateral;
provided, however, that this Section does not impose a requirement that the
Agent solicit offers from four or more investors in order for the sale to be
commercially reasonable.
10. Security Interest Absolute. All rights of the Agent and security
interests hereunder, and all obligations of the Pledgor hereunder, shall be
absolute and unconditional irrespective of:
(i) Any lack of validity or enforceability of the Credit Agreement or
any other agreement or instrument relating thereto;
(ii) Any change in the time, manner or place of payment of, or in any
other term of, all or any part of the Liabilities, or any other amendment
or waiver of or any consent to any departure from the Credit Agreement;
(iii) Any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any part of the Liabilities; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Pledgor in respect of the
Liabilities or of this Agreement.
11. Agent Appointed Attorney-in-Fact. The Pledgor hereby appoints
the Agent its attorney-in-fact, with full authority, in the name of the Pledgor
or otherwise, after the occurrence and during the continuation of an Event of
Default, from time to time in the Agent's sole discretion, to take any action
and to execute any instrument which the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation, to
receive, endorse and collect all instruments made payable to the Pledgor
representing any cash distribution, interest payment or
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other distribution in respect of the Pledged Collateral or any part thereof and
to give full discharge for the same, to exercise all rights of a member and
manager (upon the election of the Agent) such as all voting, consent, managerial
and other member rights, and to arrange for the transfer of all or any part of
the Pledged Collateral on the books of GRCL and of GOCL to the name of the Agent
or the Agent's nominee.
12. Waivers; Marshalling. (a) The Pledgor waives presentment and
demand for payment of any of the Liabilities, protest and notice of dishonor or
default with respect to any of the Liabilities and all other notices to which
the Pledgor might otherwise be entitled except as otherwise expressly provided
herein or in the Credit Agreement.
(b) Neither the Agent nor any Holder of Secured Obligations shall be
required to xxxxxxxx any present or future collateral security for (including
but not limited to this Agreement and the Pledged Collateral), or other
assurances of payment of, the Obligations or any of them, or to resort to such
collateral security or other assurances of payment in any particular order. All
of the Agent's rights hereunder and of the Holders of Secured Obligations and
the Agent in respect of such collateral security and other assurances of payment
shall be cumulative and in addition to all other rights, however existing or
arising. To the extent that it lawfully may, the Pledgor hereby agrees that it
will not invoke any law relating to the marshalling of collateral that might
cause delay in or impede the enforcement of the Agent's rights under this
Agreement or under any other instrument evidencing any of the Obligations or
under which any of the Obligations is outstanding or by which any of the
Obligations is secured or payment thereof is otherwise assured, and to the
extent that it lawfully may, the Pledgor hereby irrevocably waives the benefits
of all such laws.
13. Term. This Agreement shall remain in full force and effect until
the Liabilities (other than continuing indemnity obligations) have been fully
and indefeasibly paid in cash and the Credit Agreement has terminated pursuant
to its terms. Upon the termination of this Agreement as provided above (other
than as a result of the sale of the Pledged Collateral), the Agent will release
the security interest created hereunder and, if it then has possession of the
Pledged Membership Interest or other Pledged Collateral, will deliver the
Pledged Membership Interest and the Powers or such other Pledged Collateral to
the Pledgor.
14. Definitions. The singular shall include the plural and vice
versa and any gender shall include any other gender as the context may require.
15. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Pledgor, the Agent, for the benefit of itself and
the Holders of Secured Obligations, and their respective successors and assigns.
The Pledgor's successors and assigns shall include, without limitation, a
receiver, trustee or debtor-in-possession of or for the Pledgor.
16. GOVERNING LAW. THE AGENT HEREBY ACCEPTS THIS AGREEMENT, ON
BEHALF OF ITSELF AND THE HOLDERS OF SECURED OBLIGATIONS, AT NEW YORK, NEW YORK
BY ACKNOWLEDGING AND AGREEING TO IT THERE. ANY DISPUTE BETWEEN THE AGENT OR ANY
HOLDER OF SECURED OBLIGATIONS AND THE PLEDGOR ARISING OUT OF OR RELATED TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, AND
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WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. Consent to Jurisdiction; Counterclaims; Forum Non Conveniens.
(a) Exclusive Jurisdiction. Except as provided in subsection (b) of this
Section 17, the Agent, on behalf of itself and the Holders of Secured
Obligations, and the Pledgor agree that all disputes between them arising out of
or related to the relationship established between them in connection with this
Agreement, whether arising in contract, tort, equity, or otherwise, shall be
resolved only by state or federal courts located in New York, New York, but the
parties acknowledge that any appeals from those courts may have to be heard by a
court located outside of New York, New York.
(b) Other Jurisdictions. The Agent shall have the right to proceed
against the Pledgor or its real or personal property in a court in any location
to enable the Agent to obtain personal jurisdiction over the Pledgor, to realize
on the Pledged Collateral or any other security for the Liabilities or to
enforce a judgment or other court order entered in favor of the Agent. The
Pledgor shall not assert any permissive counterclaims in any proceeding brought
by the Agent arising out of or relating to this Agreement.
(c) Venue; Forum Non Conveniens. Each of the Pledgor and the Agent
waives any objection that it may have (including, without limitation, any
objection to the laying of venue or based on forum non conveniens) to the
location of the court in which any proceeding is commenced in accordance with
this Section 17.
18. Service of Process. The Pledgor waives personal service of any
process upon it and, as security for the Liabilities, irrevocably appoints The
Prentice Hall Corporation System, Inc., 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx
00000, as its registered agent for the purpose of accepting service of process
issued by any court.
19. WAIVER OF JURY TRIAL. EACH OF THE PLEDGOR AND THE AGENT WAIVES
ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT,
OR OTHERWISE, BETWEEN THE AGENT AND THE PLEDGOR ARISING OUT OF OR RELATED TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EITHER THE PLEDGOR OR
THE AGENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
20. Waiver of Bond. The Pledgor waives the posting of any bond
otherwise required of the Agent in connection with any judicial process or
proceeding to realize on the Pledged Collateral or any other security for the
Liabilities, to enforce any judgment or other court order entered in favor of
the Agent, or to enforce by specific performance, temporary restraining order,
or preliminary or permanent injunction, this Agreement or any other agreement or
document between the Agent and the Pledgor.
21. Advice of Counsel. The Pledgor represents and warrants to the
Agent and the Holders of Secured Obligations that it has consulted with its
legal counsel regarding all waivers under this Agreement, including without
limitation those under Section 12 and Sections 16 through 20 hereof, that it
believes that it fully understands
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all rights that it is waiving and the effect of such waivers, that it assumes
the risk of any misunderstanding that it may have regarding any of the
foregoing, and that it intends that such waivers shall be a material inducement
to the Agent and the Holders of Secured Obligations to extend the indebtedness
secured hereby.
22. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but, if any provision of this Agreement shall be held to be
prohibited or invalid under applicable law, such provision shall be ineffective
only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
23. Further Assurances. The Pledgor agrees that it will cooperate
with the Agent and will execute and deliver, or cause to be executed and
delivered, all such other stock powers, proxies, instruments and documents, and
will take all such other actions, including, without limitation, the execution
and filing of financing statements, as the Agent may reasonably request from
time to time in order to carry out the provisions and purposes of this
Agreement.
24. The Agent's Duty of Care. The Agent shall not be liable for any
acts, omissions, errors of judgment or mistakes of fact or law, including,
without limitation, acts, omissions, errors or mistakes with respect to the
Pledged Collateral, except for those arising out of or in connection with the
Agent's (i) gross negligence or willful misconduct, or (ii) failure to use
reasonable care with respect to the safe custody of the Pledged Collateral in
the Agent's possession. Without limiting the generality of the foregoing, the
Agent shall be under no obligation to take any steps necessary to preserve
rights in the Pledged Collateral against any other parties but may do so at its
option. All expenses incurred in connection therewith shall be for the sole
account of the Pledgor, and shall constitute part of the Liabilities secured
hereby.
25. Notices. All notices and other communications required or
desired to be served, given or delivered hereunder shall be made in the manner
set forth in the Credit Agreement.
26. Amendments, Waivers and Consents. No amendment or waiver of any
provision of this Agreement nor consent to any departure by the Pledgor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Agent pursuant to the terms of the Credit Agreement, and then
such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
27. Section Headings. The section headings herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
28. Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
shall together constitute one and the same agreement.
12
29. Merger. This Agreement represents the final agreement of the
Pledgor with respect to the matters contained herein and may not be contradicted
by evidence of prior or contemporaneous agreements, or subsequent oral
agreements, between the Pledgor and the Agent or any Holder of Secured
Obligations.
30. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden or proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
13
IN WITNESS WHEREOF, the Pledgor and the Agent have executed this
Agreement as of the date set forth above.
THE DELTA QUEEN STEAMBOAT CO.
By: /s/ Jordan 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
14
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the foregoing
Agreement, agrees promptly to note on its books the security interests and
assignment granted under such Agreement, and waives any rights or requirement
at any time hereafter to receive a copy of such Agreement in connection with
the registration of any Pledged Collateral in the name of the Agent or its
nominee or the exercise of voting rights by the Agent or its nominee.
GREAT RIVER CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co., a
Managing Member
By: /s/ Jordan 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
15
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the
foregoing Agreement, agrees promptly to note on its books the security
interests and assignment granted under such Agreement, and waives any rights or
requirement at any time hereafter to receive a copy of such Agreement in
connection with the registration of any Pledged Collateral in the name of the
Agent or its nominee or the exercise of voting rights by the Agent or its
nominee.
GREAT OCEAN CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co., a
Managing Member
By: /s/ Jordan 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
16
CONSENT
The undersigned hereby acknowledges receipt of a copy of the foregoing
Agreement and consents to the pledge by The Delta Queen Steamboat Co. of its
membership interests in GRCL and GOCL to the Agent.
DQSB II, INC.
By: /s/ Jordan X. Xxxxx
----------------------------
Name: Jordan X. Xxxxx
Title: Senior Vice President
17
EXHIBIT A
to
LIMITED LIABILITY COMPANY PLEDGE AGREEMENT
dated as of March 26, 1997
Pledged Membership Interests
Percentage of
Membership Interest
Name of the Pledgor
---- -------------------
Great River Cruise Line, L.L.C. 99%
Great Ocean Cruise Line, L.L.C. 99%
18
EXHIBIT B
to
LIMITED LIABILITY COMPANY PLEDGE AGREEMENT
dated as of March 26, 1997
Instruction in Connection with
Uncertificated Securities
March 26, 1997
Limited Liability Company:
[__________________], L.L.C.
MEMBERSHIP INTEREST OWNER:
The Delta Queen Steamboat Co.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Reference is hereby made to that certain Limited Liability Company
Pledge Agreement dated as of March 26, 1997 (the "PLEDGE") between The Delta
Queen Steamboat Co. (the "INTEREST OWNER"), a member of [_______________],
L.L.C. (the "LIMITED LIABILITY COMPANY"), and The Chase Manhattan Bank, as
Agent, as pledgee (the "PLEDGEE").
1. Pledge Instructions. The Limited Liability Company is hereby
instructed by the Interest Owner to register all of the Interest Owner's right,
title and interest in and to all of the Interest Owner's rights in connection
with any membership interest in the Limited Liability Company now and hereafter
owned by the Interest Owner as subject to a pledge (or assignment) in favor of
the Pledgee who, upon such registration of pledge, shall become the registered
pledgee (or assignee) of the membership interests with all rights incident
thereto.
2. Initial Transaction Statement. The Limited Liability Company is
further instructed by the Interest Owner to promptly inform the Pledgee of the
registration of the pledge by sending the initial transaction statement, in the
form attached hereto as Annex A, to the Pledgee at its office located at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
3. Warranties of the Interest Owner. The Interest Owner hereby
warrants that (i) the Interest Owner is an appropriate person to originate this
instruction; (ii) the Interest Owner is entitled to effect the instruction here
given; and (iii) the Interest Owner's taxpayer identification number is 72-
1245383.
19
IN WITNESS WHEREOF, the Interest Owner has caused this Pledge
Instruction to be duly signed and delivered by its officer duly authorized as of
the date first above written.
THE DELTA QUEEN STEAMBOAT CO.
By:__________________________
Name: _______________________
Title:_______________________
CONSENT OF THE LIMITED LIABILITY COMPANY
[________________], L.L.C. (the "LIMITED LIABILITY COMPANY") hereby
certifies that the Limited Liability Company consents and agrees to cause to be
registered on the books and records of the Limited Liability Company the pledge
of the membership interests referenced above and further agrees that upon
receipt of written notice from the Pledgee that a default by the Interest Owner
under the terms of any of the loan documents between the Interest Owner and the
Pledgee has occurred and is continuing, the Limited Liability Company shall pay
and remit to the Pledgee all distributions and other amounts payable to the
Interest Owner upon redemption, termination and dissolution of the Limited
Liability Company or otherwise.
[_______________________], L.L.C.
By: The Delta Queen Steamboat Co.,
a Managing Member
By: _________________________
Name: Jordan X. Xxxxx
Title: Senior Vice President
By: DQSB II, Inc., a Managing Member
By: _________________________
Name: Jordan X. Xxxxx
Title: Senior Vice President
20
Annex A
to
Pledge Instruction
Form of Initial Transaction Statement
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Reference is hereby made to that certain Limited Liability Company
Pledge Agreement dated as of March 26, 1997 (the "PLEDGE") between The Delta
Queen Steamboat Co. (the "INTEREST OWNER"), a member of [________________],
L.L.C. (the "LIMITED LIABILITY COMPANY"), and The Chase Manhattan Bank, as
Agent, as pledgee (the "PLEDGEE").
On ______________ __, 1997, the Limited Liability Company caused the
pledge (or assignment) of the 99% membership interest ("MEMBERSHIP INTEREST") by
the Interest Owner in favor of the Pledgee to be registered on the books and
records of the Limited Liability Company. Except for the pledge in favor of the
Pledgor, to the knowledge of the Limited Liability Company, there are no liens,
restrictions or adverse claims (as to which the Limited Liability Company has a
duty under Section 8-403 of the Uniform Commercial Code) to which the Membership
Interest is, or may be subject, as of the date hereof.
The name of the owner of record of the Membership Interest is the
Interest Owner. The address of the Interest Owner is set forth above. The
taxpayer identification number of the Interest Owner is 00-0000000.
The name of the registered pledgee of the Membership Interest is The
Chase Manhattan Bank, as Agent, for its benefit and the benefit of Holders of
Secured Obligations. The address of the Pledgee is set forth above. The
taxpayer identification number of the Pledgee is 00-0000000.
21
THIS STATEMENT IS MERELY A RECORD OF THE RIGHTS OF THE ADDRESSEES AS
OF THE TIME OF ITS ISSUANCE. DELIVERY OF THIS STATEMENT, OF ITSELF, CONFERS NO
RIGHTS ON THE RECIPIENTS. THIS STATEMENT IS NEITHER A NEGOTIABLE INSTRUMENT NOR
A SECURITY.
[_______________________], L.L.C.
By: The Delta Queen Steamboat Co.,
a Managing Member
By: _________________________
Name: Jordan X. Xxxxx
Title: Senior Vice President
By: DQSB II, INC. a Managing Member
By: _________________________
Name: Jordan X. Xxxxx
Title: Senior Vice President
