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EXHIBIT 4.(ii)(c)(12)
MODIFICATION AND ASSUMPTION AGREEMENT
This MODIFICATION AND ASSUMPTION AGREEMENT ("Agreement") is entered into
March 25, 1997, effective as of December 31, 1996, among the following parties
(collectively, the "Parties"):
(i) THE UNITED STATES OF AMERICA ("United States"), represented by
the Secretary of Transportation, acting by and through the Maritime
Administrator ("Secretary");
(ii) Great AQ Steamboat, L.L.C. (the "Successor Shipowner"), which is the
successor, by merger with Great AQ Steamboat Co. (the "Original
Shipowner"), at 11:59 p.m. on December 31, 1996, (the Successor
Shipowner, after such merger being hereinafter referred to as the
"Shipowner");
(iii) The Bank of New York (the "Indenture Trustee"), appointed as
Indenture Trustee pursuant to the Trust Indenture (as hereinafter
defined).
WITNESSETH:
WHEREAS, on August 24, 1995, Original Shipowner issued obligations known as
United States Government Guaranteed Ship Financing Obligations, American Queen
Series (the "Obligations"), in the original aggregate principal amount of
$60,589,000.00 (the "Guarantee Transaction"); and
WHEREAS, the Original Shipowner and the Successor Shipowner agreed to
merge, with the Successor Shipowner as the surviving entity (the "Merger"), and,
as such, the Shipowner wishes to amend the documents in the Guarantee
Transaction as necessary to reflect the Merger.
NOW, THEREFORE, in consideration of the mutual rights and obligations set
forth herein and of other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the Parties hereby agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Certain Definitions. As used herein, each of the following
defined terms shall have the respective meaning set forth opposite such term:
(a) "Authorization Agreement" shall mean the Authorization Agreement dated
August 24, 1995 (Contract No. MA-13047), between the Secretary and the
Indenture Trustee, as modified and/or supplemented to date;
(b) "Depository Agreement" shall mean the Depository Agreement dated
August 24, 1995 (Contract No. MA-13051), among Shipowner, the
Secretary and the Indenture Trustee, as modified and supplemented to
date;
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(c) "First Mortgage" shall mean that certain First Preferred Ship Mortgage
(Contract No. MA-13049) dated as of August 24, 1995, from the Original
Shipowner to the Secretary and covering the AMERICAN QUEEN (Official
No. 1030765), as recorded with the United States Coast Guard National
Vessel Documentation Center in Preferred Mortgage Book No. NVDC 95-1,
Instrument No. 179 on August 24, 1995, at 3:05 p.m.;
(d) "Reserve Fund Agreement" shall mean the Title XI Reserve Fund and
Financial Agreement dated as of August 24, 1995, between the Shipowner
and the Secretary (Contract No. MA-13050), including without
limitation the General Provisions incorporated therein;
(e) "Secretary's Note" shall mean the Secretary's Note dated August 24,
1995, pursuant to the Security Agreement (as hereinafter defined) from
the Original Shipowner to the Secretary, as endorsed by the Shipowner
to date;
(f) "Security Agreement" shall mean the Security Agreement dated August 24,
1995 (Contract No. MA-13048), between the Shipowner and the United
States of America, as amended and/or supplemented to date; and
(g) "Trust Indenture" shall mean the Trust Indenture dated August 24,
1995, between the Shipowner and Indenture Trustee, including without
limitation the General Provisions incorporated therein, all as amended
and/or supplemented to date.
ARTICLE 2
SUPPLEMENTAL INDENTURE AND MODIFICATION OF DOCUMENTS
Section 2.01. Modification of Documents. Each of the Parties hereby agrees
that each of the following documents (collectively, the "Documents") is modified
as set forth herein, effective as of December 31, 1996 (the "Effective Date")
(or, if such Party is not a party to the document in question, consents to the
modification of such document by the parties thereto):
(i) the Trust Indenture;
(ii) the Authorization Agreement;
(iii) the Security Agreement;
(iv) the Reserve Fund Agreement; and
(v) the Depository Agreement.
Without limiting the foregoing, the Shipowner shall also execute and
deliver:
(A) the endorsement to the Notes and Bonds as set forth in Section 2.02(b)
below (as in the form of Exhibit A to this Agreement);
(B) Endorsement to Secretary's Note (in the form of Exhibit B to this
Agreement); and
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(C) Supplement No. 1 to the Mortgage (in the form of Exhibit C to this
Agreement).
Section 2.02(a). Substitution of Great AQ Steamboat, L.L.C. for Great AQ
Steamboat Co. The parties hereto agree that wherever Great AQ Steamboat Co.
appears in any of the Documents Great AQ Steamboat, L.L.C. shall be substituted
in lieu thereof unless the context otherwise so requires.
(b) Supplemental Indenture. This Agreement shall also be deemed to be a
supplement to the Indenture (this "Supplemental Indenture"). Effective as of
December 31, 1996, (i) the Shipowner assumes payment of principal of and
interest (and premium, if any) on the Outstanding Obligations issued under the
Indenture in accordance with the terms of the Obligations and of the Indenture;
(ii) the Shipowner assumes the performance of the agreements of the Original
Shipowner in the Indenture; and (iii) the Original Shipowner is hereby released
from any and all obligations under the Indenture. The Shipowner may exercise
every right and power of the Original Shipowner with the same effect as if the
Shipowner had been named as the Original Shipowner. Nothing herein shall
adversely affect the Indenture Trustee's own rights, duties or immunities under
the Indenture.
(c) The Obligations. The Obligations, of which $21,812,000.00 aggregate
principal amount of Floating Rate Notes due August 24, 2005 (the "Notes") are
Outstanding on the date hereof and $36,353,000.00 aggregate principal amount of
7.68% Sinking Fund Bonds due June 2, 2020 (the "Bonds") are Outstanding on the
date hereof, shall each, together with any obligation issued in replacement of
any of such Notes or Bonds, be endorsed by the Indenture Trustee with the
following:
"Great AQ Steamboat, L.L.C., a Delaware limited liability company, is
successor in interest to Great AQ Steamboat Co. Great AQ Steamboat, L.L.C.,
effective December 31, 1996, assumed all of the rights, duties and obligations
of Great AQ Steamboat Co. relating to this 2020 Bond (or 2005 Note, as
applicable)."
(d) The Authorization Agreement. Consistent with the provisions
contained in this Agreement, the Authorization Agreement is hereby amended to
reflect the succession of the Shipowner to the Original Shipowner.
(e) The Security Agreement.
(i) Section 2.16 of the Security Agreement shall be restated in its
entirety to read as follows: " (a) If the Shipowner is organized as a
general partnership, limited liability company or a joint venture, then for
so long as there is Outstanding any indebtedness to the United States of
America pursuant to Title XX xx xxx Xxxxxxxx Xxxxxx Xxx, 0000, as amended,
the partnership agreement, the limited liability company agreement, or
agreement constituting a joint venture, shall not be amended, modified, or
voluntarily terminated without the prior written consent of the Secretary;
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(b) in each event where any action by the LLC, any Member, or the
management of the LLC, results in dissolution of the LLC pursuant to the
LLC Agreement or governing law, each Member shall forthwith take all steps
necessary to reform and re-establish the LLC.";
(c) All existing and future Members of the Shipowner as a limited liability
company, are required to enter into an agreement with the Secretary, in
form and substance satisfactory to the Secretary, whereby each Member
agrees (i) that any amounts owed by the Shipowner to a Member in respect of
its Interest (as that or the equivalent term is used in the LLC Agreement)
shall be paid only to the extent such payment is permitted under Title XI
Reserve Fund and Financial Agreement; (ii) that in the event of default by
the Shipowner under the Security Agreement, the Member shall be
subordinated in its rights to receive any distribution; (iii) to
subordinate any rights to payments other than distributions, under any
agreements with the Shipowner other than the LLC Agreement (including
agreements of indemnification) to the Secretary's full recovery of any and
all amounts owed under the Secretary's Note and the Mortgage."
(ii) Section 6.01(b) of the Security Agreement is hereby amended by adding
the following:
"(10) Modification, amendment or termination of the Amended and Restated
Limited Liability Company Agreement dated as of January 2, 1997, without
the prior written consent of the Secretary.
(11) Any failure by the Members to immediately reform the LLC in the event
of dissolution of the LLC pursuant to the LLC Agreement or governing law."
Section 2.03. Ratification. Except as modified pursuant to Section 2.02
hereof, each of the Documents is ratified and confirmed and shall be, and
remain, in full force and effect.
ARTICLE 3
ASSUMPTION
Section 3.01. Assumption. As of the Effective Date, pursuant to the
Merger, the Shipowner assumes all of the Original Shipowner's rights,
privileges, duties and obligations set forth in the Documents, as amended
through the date hereof, including the payment of principal of (and premiums, if
any) and interest on the Outstanding Obligations in accordance with the terms of
the Obligations.
Section 3.02. Secretary's Consent. Effective as of the date set forth
above, the Secretary consents to the Supplemental Indenture and the modification
of the Documents as set forth in Article 2, and to the assumption by the
Shipowner as set forth above. The Secretary further approves the form of the
endorsement to the Notes and Bonds attached hereto as Exhibit A, to the form of
the Endorsement to the Secretary's
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Note, attached hereto as Exhibit B, and to the form of Supplement No. 1 to the
Mortgage, attached hereto as Exhibit C.
Section 3.03. Definitions. Terms used but undefined herein shall have the
meanings ascribed to them in Schedule X to the Security Agreement.
ARTICLE 4
MISCELLANEOUS
Section 4.01. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of each of the Parties and their respective
successors and assigns.
Section 4.02. Entire Agreement. This Agreement embodies the entire
agreement and understanding between the Parties relating to the subject matter
hereof and may not be amended, waived or discharged except by an instrument in
writing executed by the party against which enforcement of such amendment,
waiver or discharge is sought.
Section 4.03. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 4.04. No Waiver; Cumulative Remedies. No Party to this Agreement
shall, by any act, delay, omission or otherwise, be deemed to have waived any of
its rights or remedies hereunder and no waiver shall be valid unless in writing,
signed by all the Parties, and then only to the extent therein set forth. A
waiver by any Party of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which such Party would
otherwise have had on any future occasion. No failure to exercise nor any delay
in exercising on the part of such Party, any right, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies hereunder provided are cumulative and may be exercised
singly or concurrently, and are not exclusive of any rights and remedies
provided by law.
Section 4.05. Amendments. None of the terms or provisions of this
Agreement may be waived, altered, modified or amended except by an instrument in
writing, duly executed by each of the Parties.
Section 4.06. Governing Law. This Agreement is made under, and shall be
construed in accordance with, the laws of the United States and the laws of the
State of Louisiana.
Section 4.07. Consent to Jurisdiction. Shipowner consents to the
jurisdiction of the courts and service of process in federal district court for
the Eastern District of Louisiana.
Section 4.08. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts, when so executed, shall for all
purposes be
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deemed to be an original and all of which taken together shall constitute one
and the same agreement.
IN WITNESS WHEREOF, this Modification and Assumption Agreement has been
duly executed by the Parties and is effective as of the day and year first
above written, as evidenced by their authorized signatures set forth below.
GREAT AQ STEAMBOAT, L.L.C., a Delaware
limited liability company
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 Delaware corporation, a
Managing Member
By: /S/ Jordan X. Xxxxx
--------------------------------
Name: Jordan X. Xxxxx
Title: Senior Vice President
GREAT AQ STEAMBOAT, CO., a Delaware
corporation
By: Great AQ Steamboat, L.L.C., a
Delaware limited liability company,
successor by merger to Great AQ
Steamboat Co.
By: The Delta Queen Steamboat Co., a
Delaware corporation,
a Managing Member
By: /S/ Jordan X. Xxxxx
-----------------------------
Name: Jordan X. Xxxxx
Title: Senior Vice President
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By: DQSB II, Inc., a Delaware
corporation, a Managing Member
By: /S/ Jordan X. Xxxxx
------------------------------
Name: Jordan X. Xxxxx
Title: Senior Vice President
UNITED STATES OF AMERICA
represented by the SECRETARY OF
TRANSPORTATION acting by and
through the MARITIME ADMINISTRATOR
By: /S/ Xxxx X. Xxxxxxx
--------------------------------
Secretary
Maritime Administrator
ATTEST:
/S/ Xxxxxxxx X. Xxxxx
--------------------------
Assistant Secretary
Maritime Administation
THE BANK OF NEW YORK
By: /S/ Xxxx Xxxxxxxx
-------------------------------
Indenture Trustee
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ACKNOWLEDGMENTS
STATE OF ILLINOIS )
) SS.:
COUNTY OF XXXX )
On this 25th day of March, 1997, before me personally appeared Jordan
X. Xxxxx, known to me to be the person whose name is subscribed to the
foregoing instrument and who, being by me duly sworn, did depose and say that
he is Senior Vice President of The Delta Queen Steamboat Co. and DQSB II, Inc.,
the Managing Members of GREAT AQ STEAMBOAT, L.L.C., a Delaware limited
liability company, and acknowledged to me that he executed the same on behalf
of said companies for the purposes and consideration therein expressed and as
the free and voluntary act and deed of himself and said companies.
/S/ Xxxxxx Xxxxxxx
(SEAL) -------------------------------
Notary Public
My commission expires: 4/28/00
STATE OF ILLINOIS )
) SS.:
COUNTY OF XXXX )
On this 25th day of March, 1997, before me personally appeared Jordan
X. Xxxxx, known to me to be the person whose name is subscribed to the
foregoing instrument and who, being by me duly sworn, did depose and say that
he is Senior Vice President of The Delta Queen Steamboat Co. and DQSB II, Inc.,
the Managing Members of GREAT AQ STEAMBOAT, L.L.C., a Delaware limited
liability company, successor by merger and operation of law to Great AQ
Steamboat Co., a Delaware corporation, and acknowledged to me that he executed
the same on behalf of said companies for the purposes and consideration therein
expressed and as the free and voluntary act and deed of himself and said
companies.
/S/ Xxxxxx Xxxxxxx
(SEAL) -------------------------------
Notary Public
My commission expires: 4/28/00
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STATE OF NEW YORK )
) SS.:
CITY OF NEW YORK )
I, the undersigned, a Notary Public in and for the State of New York,
do hereby certify that Xxxx Xxxxxxxx, on this 25th day of March, 1997,
personally appeared before me an Assistant Vice President of The Bank of New
York, the aforesaid officer being personally well known to me as the person who
executed the foregoing instrument hereto annexed and acknowledged the same to be
her free act and deed as said officer on behalf of The Bank of New York. GIVEN
under my hand and seal this __________ day of ________, 1997.
Xxxxxxx X. Xxxxxxx
--------------------------
Notary Public
(Notorial Stamp and Seal)
My Commission Expires: 5/16/98
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EXHIBIT A
Great AQ Steamboat, L.L.C., a Delaware limited liability company, is successor
in interest to Great AQ Steamboat Co. Great AQ Steamboat, L.L.C., effective
December 31, 1996, assumed all of the rights, duties and obligations of Great AQ
Steamboat Co. relating to this 2020 Bond.
Great AQ Steamboat, L.L.C., a Delaware limited liability company, is successor
in interest to Great AQ Steamboat Co. Great AQ Steamboat, L.L.C., effective
December 31, 1996, assumed all of the rights, duties and obligations of Great AQ
Steamboat Co. relating to this or 2005 Note.
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