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EXHIBIT 4(ii)(e)(1)
Contract No. MA-13625
COMMITMENT TO GUARANTEE OBLIGATIONS
by
THE UNITED STATES OF AMERICA
Accepted by
CAPE MAY LIGHT, L.L.C.,
Shipowner
(Under Title XI, Merchant Marine Act, 1936,
as amended, and in effect on the
date of this Guarantee Commitment)
Dated October 16, 2000
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COMMITMENT TO GUARANTEE OBLIGATIONS
by
THE UNITED STATES OF AMERICA
Accepted by
CAPE MAY LIGHT, L.L.C.,
Shipowner
(Under Title XI, Merchant Marine Act, 1936, as amended,
and in effect on the date of this Guarantee Commitment)
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TABLE OF CONTENTS
Document
Number Document
- ------ --------
1 Commitment to Guarantee Obligations
2 Schedule One -- Form of Opinion of Counsel
3 Appendix I -- Bond Purchase Agreement
4 Appendix II -- Trust Indenture
5 Schedule A -- Schedule of Definitions to Trust Indenture
6 Exhibit 1 -- General Provisions to Trust Indenture
7 Exhibit 2 -- Form of Bond(s), Guarantee and Trustee's
Authentication Certificate
8 Exhibit 3 -- Authorization Agreement
9 Appendix III -- Security Agreement
10 Exhibit 1 -- General Provisions Incorporated into the
Security Agreement by Reference
11 Schedule X -- Schedule of Definitions
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12 Exhibit 2 -- Form of Secretary's Note
13 Exhibit 3 -- Form of First Preferred Ship Mortgage
14 Exhibit 4 -- Title XI Reserve Fund and Financial Agreement
15 Exhibit 5 -- Form of Consent of Shipyard
16 Exhibit 6 -- Construction Contract
17 Exhibit 7 -- Depository Agreement
18 Exhibit 8 -- Guaranty Agreement
19 Exhibit 9 -- Funding Agreement
20 Exhibit 10 -- Assignment of Construction Contract
21 Exhibit 11 -- Shipyard Security Agreement
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Document 1
COMMITMENT
TO
GUARANTEE OBLIGATIONS
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TABLE OF CONTENTS
COMMITMENT TO GUARANTEE OBLIGATIONS
ARTICLE HEADINGS PAGE
RECITALS......................................................................1
ARTICLE I FINDINGS AND DETERMINATIONS OF SECRETARY.......................2
ARTICLE II COMMITMENT TO GUARANTEE OBLIGATIONS.............................2
ARTICLE III THE OBLIGATIONS.................................................2
ARTICLE IV CONDITIONS TO EXECUTION AND DELIVERY OF THE GUARANTEE...........3
ARTICLE V VARIATION OF GUARANTEE COMMITMENT ..............................4
ARTICLE VI TERMINATION OR ASSIGNMENT OF GUARANTEE COMMITMENT...............5
ARTICLE VII MISCELLANEOUS...................................................5
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COMMITMENT TO GUARANTEE OBLIGATIONS
THIS COMMITMENT TO GUARANTEE OBLIGATIONS, dated October 16, 2000 (the
"Guarantee Commitment"), made and entered into by the UNITED STATES OF AMERICA
(the "United States"), represented by the SECRETARY OF TRANSPORTATION, acting by
and through the MARITIME ADMINISTRATOR (the "Secretary"), and accepted on said
date by Cape May Light, L.L.C., a Delaware limited liability company (the
"Shipowner").
RECITALS:
A. The Shipowner is the sole owner of the 300' passenger vessel
cv Cape May Light (the "Vessel") being constructed pursuant to the Construction
Contract between Atlantic Marine, Inc. (the "Shipyard") and Delta Queen Coastal
Voyages, L.L.C. (the "Guarantor"), dated May 1, 1999, and subsequently assigned
to the Shipowner.
B. To aid in financing the Construction of the Vessel, the
Shipowner will borrow an aggregate principal amount in Obligations not to exceed
87.5% of the Depreciated Actual Cost or Actual Cost of the Vessel, as the case
may be, as of the Closing Date. To accomplish such financing, the Shipowner has
accepted this Guarantee Commitment subject to the terms and conditions set forth
herein.
C. The Shipowner has entered into the Bond Purchase Agreement
providing for the sale and delivery, on the Closing Date, of bonds in the
aggregate principal amount of $37,900,000, to be designated "United States
Government Guaranteed Ship Financing Bonds, 2000 Series" (the "Bonds" or the
"Obligations") having the maturity dates and interest rates set forth in the
Obligations.
D. As security for the Guarantees and the Secretary's Note, (i)
the Shipowner will execute and deliver the Security Agreement, Contract No.
MA-13627, the Indenture, the Authorization Agreement, Contract No. MA-13626, the
Secretary's Note, the Financial Agreement, Contract MA-13629, and the Depository
Agreement, Contract No. MA-13630; (ii) the Guarantor shall execute and deliver
the Guaranty Agreement, Contract No. MA-13631; and (iii) the Shipowner, the
Guarantor and the Parent Company shall execute and deliver the Funding
Agreement, Contract No. MA-13634.
WITNESSETH
That under the provisions of Title XI of the Merchant Marine Act, 1936,
as amended and in consideration of (i) the covenants of the Shipowner contained
herein and (ii) other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Secretary hereby commits
itself as herein provided.
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ARTICLE I
FINDINGS AND DETERMINATIONS OF THE SECRETARY
Pursuant to Section 1104A(b)(1) of Title XI, the Secretary has approved
the Shipowner as responsible and possessing the ability, experience, financial
resources and other qualifications necessary to the adequate operation and
maintenance of the Vessel.
Pursuant to Section 1104A(b)(2) of Title XI, the Secretary has
determined that the Depreciated Cost or Actual Cost of the Vessel, as the case
may be, is $44,249,278. Prior to the Closing Date, the Secretary, in its
discretion, may redetermine the Depreciated Actual Cost or Actual Cost of the
Vessel. On the Closing Date, the aggregate principal amount of the Outstanding
Obligations will not exceed 87.5% of the Depreciated Actual Cost or the Actual
Cost, as the case may be.
Pursuant to Sections 1104A(b)(3), 1104A(b)(4) and 1104A(b)(5) of Title
XI, the Secretary has determined or will determine that: (1) the maturity date
of the Obligations is satisfactory, (2) payments of principal required by the
Obligations are satisfactory and (3) the interest rates to be borne by the
Obligations to be issued on the Closing Date are reasonable.
Pursuant to Section 1104A(d) of Title XI, the Secretary has found that
the Shipowner's proposed use of the Vessel will be economically sound.
ARTICLE II
COMMITMENT TO GUARANTEE OBLIGATIONS
The United States, represented by the Secretary, hereby commits itself
to guarantee the payment of the unpaid interest on, and the unpaid balance of
the principal of, the Obligations, including interest accruing between the date
of default under the Obligations and the payment in full of the Guarantees, and,
to effect this Guarantee Commitment, hereby commits itself to execute and
deliver, the Security Agreement, the Financial Agreement, the Authorization
Agreement and the Depository Agreement on the Closing Date, and the Mortgage on
the Delivery Date pursuant to the terms of the Guarantee Commitment.
ARTICLE III
THE OBLIGATIONS
The Obligations shall be issued in one or as a series of bonds as
provided in the Indenture and in the form of Obligations, annexed to the
Indenture as Exhibit 2. The Obligations shall be subject to all of the terms and
conditions set forth in the Indenture.
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ARTICLE IV
CONDITIONS TO EXECUTION AND DELIVERY OF THE GUARANTEE
The obligation of the Secretary to execute and deliver the Guarantee on
the Closing Date shall be subject to the following conditions unless waived in
writing by the Secretary:
(a) the Closing Date shall occur on or prior to March 31, 2001;
(b) the Shipowner and the Shipyard shall have executed and
delivered to the Secretary a copy of the Construction Contract and the Shipyard
shall have executed the Consent of Shipyard;
(c) the Shipowner shall have executed and delivered the following
documents on the Closing Date in the form attached hereto: the Security
Agreement, the Financial Agreement, the Indenture, the Obligation Purchase
Agreement, the Secretary's Note, the Depository Agreement, the Authorization
Agreement and the Obligations and, on the Delivery Date, the Mortgage;
(d) the Indenture Trustee shall have executed, in the form
attached hereto, the Indenture and the Authorization Agreement and the
Depository shall have executed the Depository Agreement;
(e) The Obligation purchaser shall have executed the Obligation
Purchase Agreement;
(f) the Guarantor shall have executed and delivered, in the form
attached hereto, the Guaranty Agreement;
(g) the Parent Company shall have executed and delivered, in the
form attached hereto, the Funding Agreement;
(h) the following documents shall have been delivered to the
Secretary: (i) two executed counterparts of the Indenture, (ii) two specimen
copies of the Obligations; (iii) two executed originals of the legal opinion
issued under section (m) of this Article; (iv) two copies of the legal opinion
delivered to the Obligees pursuant to the Obligation Purchase Agreement; and (v)
two originals of all other documents delivered by the Shipowner, the Guarantor,
the Indenture Trustee or the Depository in connection with this Closing.
(i) if the Shipowner intends to operate the Vessel in the U.S.
domestic trade, the Shipowner and any bareboat charterers of such Vessel shall
have furnished to the Secretary on the Closing Date an affidavit complying with
the requirements of 46 CFRss.355, demonstrating U.S. citizenship;
(j) the Shipowner shall have executed an Officer's Certificate
representing and warranting the truth of the following statements as of the
Closing Date:
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(i) each of the representations and warranties set out at
Section 2.01 of the General Provisions of the Security Agreement in
Appendix III; and
(ii) the Shipowner is not in violation of any Federal laws
having a substantial adverse effect on the interests of the United
States of America and that the consummation of the Commitment complies
with non-Title XI Federal law.
(k) At the Closing the Shipowner shall pay and the Secretary shall
receive the Guarantee Fee based upon the principal amount and maturity of the
Obligations to be issued at the Closing;
(l) the Shipowner shall have complied in all material respects
with its agreements under this Guarantee Commitment;
(m) there shall not have occurred any event which constitutes (or
after any period of time or any notice, or both, would constitute) a "Default"
under the Security Agreement;
(n) there shall have been delivered to the Secretary by the
Shipowner an opinion of counsel acceptable to the Secretary, in the form annexed
hereto as Schedule 1 which shall include, among other things, an opinion to the
effect that: (i) by the terms of the Security Agreement, the Shipowner has
granted to the Secretary a fully perfected, first priority security interest in
each of the assets which constitutes the Security; and (ii) all filings,
recordings, notices and other actions required to perfect the Secretary's
interests in the Security and to render such security interests valid and
enforceable under applicable State law have been duly effected;
(o) the Secretary shall have received a letter agreement from the
Shipowner to provide the Secretary within a reasonable time after the Closing
Date, with five conformed copies of the Guarantee Commitment and each of the
Appendices and Exhibits thereto executed on or prior to such date;
(p) on the Closing Date, the qualifying requirements set forth in
Section 11 of the Financial Agreement shall have been complied with and
certified to as required therein;
(q) at least ten days prior to the Closing Date, there shall have
been delivered to the Secretary, pro forma balance sheets for the Shipowner as
of the Closing Date, certified by an officer of the Shipowner showing, among
other things, all non-Title XI debt of the Shipowner;
(r) on the Closing Date, the Shipowner shall certify that all
non-Title XI loans to the Shipowner relating to the Vessel have been discharged
or subordinated satisfactorily to the Secretary;
(s) at least ten days prior to the Closing Date, the Shipowner
shall have provided the Secretary with satisfactory evidence of insurance as
required by the Security Agreement; and
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(t) on the Closing Date the Shipowner shall execute a declaration,
in conformance with 31 USC 1352, disclosing all lobbying activities.
ARTICLE V
VARIATION OF GUARANTEE COMMITMENT
No variation from the terms and conditions hereof shall be permitted
except pursuant to an amendment executed by the Secretary and the Shipowner.
ARTICLE VI
TERMINATION OR ASSIGNMENT OF GUARANTEE COMMITMENT
This Guarantee Commitment may be terminated and the parties hereto
shall have no further rights or obligations hereunder, upon written notice by
the Secretary of the termination of the obligations of the United States
pursuant to the Shipowner's failure to satisfy one or more conditions set forth
in Article IV hereof or upon the Secretary's determination, at or before the
Closing Date, that (i) the Shipowner is in violation of Federal law and such
violation would have a substantial, adverse affect on the interests of the
United States of America or (ii) the consummation of the Commitment would
violate non-Title XI Federal law. The Shipowner's warranties and representations
shall survive the termination of this Agreement and the Secretary's issuance of
the Guarantees. This Guarantee Commitment may not be assigned by the Shipowner
without the prior written approval of the Secretary and any attempt to do so
shall be null and void ab initio.
ARTICLE VII
MISCELLANEOUS
(a) The table of contents and the titles of the Articles are
inserted as a matter of convenient reference and shall not be construed as a
part of this Guarantee Commitment. This Guarantee Commitment may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
(b) For all purposes of this Guarantee Commitment, unless
otherwise expressly provided or unless the context shall otherwise require,
capitalized terms used herein shall have the meaning given in Schedule X to the
Security Agreement.
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IN WITNESS WHEREOF, this Commitment to Guarantee Obligations has been
executed by the United States and accepted by the Shipowner, all as of the day
and year first above written.
UNITED STATES OF AMERICA,
SECRETARY OF TRANSPORTATION
BY: MARITIME ADMINISTRATOR
/ s / Joel C. Richard
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Secretary
ATTEST:
/ s / Sarah J. Washington
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Assistant Secretary
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SHIPOWNER: CAPE MAY LIGHT, L.L.C.
By: DELTA QUEEN COASTAL VOYAGES, L.L.C.,
its Managing Member
By: THE DELTA QUEEN STEAMBOAT CO.,
its Managing Member
By: / S / JORDAN B. ALLEN
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Its Executive Vice President
ATTEST:
By / s / Pam Stringer
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Its Assistant Secretary