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EXHIBIT 4(ii)(a)(10)
EXECUTION COPY
AMENDED AND RESTATED CONTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED CONTRIBUTION AGREEMENT (this
"Agreement") is entered into as of September 14, 2000 by and among AMERICAN
CLASSIC VOYAGES CO., (the "Parent"), CRUISE AMERICA TRAVEL, INCORPORATED, DQSC
PROPERTY CO., DQSB II, INC., GREAT OCEAN CRUISE LINE, L.L.C., GREAT RIVER CRUISE
LINE, L.L.C. and GREAT PACIFIC NW CRUISE LINE, L.L.C. (all of the foregoing
being referred to herein individually as "Co-Obligor" and collectively as the
"Co-Obligors"). Undefined capitalized terms which are used herein shall have the
meanings ascribed to such terms in the "Credit Agreement" referred to below.
WHEREAS, pursuant to that certain Amended and Restated Credit
Agreement of even date herewith among THE DELTA QUEEN STEAMBOAT CO., a Delaware
corporation ("Borrower"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE
PAGES THEREOF and each other financial institution which from time to time
becomes a party thereto in accordance with Section 11.02(a) thereof (together
with their respect successors and assigns, individually, a "Lender" and,
collectively, the "Lenders") and THE CHASE MANHATTAN BANK, a New York banking
corporation, as agent for the lenders (the "Agent") (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
the Lenders have agreed to make certain loans or otherwise extend credit to
Borrower, among other things, to enable Borrower to make loans or otherwise
extend certain credit to the Co-Obligors;
WHEREAS, as a condition, among others, to the Lenders'
willingness to enter into the Credit Agreement, the Lenders have required that
the Parent execute and deliver that certain Parent Guaranty of even date
herewith (the "Parent Guaranty"), and the other Co-Obligors are parties to the
Subsidiary Guaranty dated as of February 25, 1999, as supplemented (together
with the Parent Guaranty, referred to hereinafter collectively as the
"Guaranty"), pursuant to which, among other things, the Co-Obligors have jointly
and severally agreed to guaranty Borrower's "Obligations" to the Lenders under
and as defined in the Credit Agreement (the "Accommodation Obligations"); and
WHEREAS, pursuant to certain "Collateral Documents" executed
pursuant to, and as defined in, the Credit Agreement, the Co-Obligors (other
than Parent) have granted liens on, and security interests in, substantially all
of their respective properties, as security for their obligations under the
Guaranty ("Collateral");
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, and to induce the Parent to enter into the
Parent Guaranty, it is agreed as follows:
1. Contribution. As used herein, the "Allocable Amount" of
any Co-Obligor, as of any date of determination, shall be determined to be an
amount equal to the maximum amount which could then be claimed against such
Co-Obligor's Collateral or under such Co-Obligor's Accommodation Obligations
without rendering such claim voidable or avoidable under Section 548 of Chapter
11 of the United States Federal Bankruptcy Code (11 U.S.C. Sec.
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101 et seq.) or under any applicable state Uniform Fraudulent Transfer Act,
Uniform Fraudulent Conveyance Act or similar statute or common law.
To the extent that a payment is made on the Obligations by a
Co-Obligor pursuant to an Accommodation Obligation or out of Collateral owned by
such Co-Obligor (a "Co-Obligor Payment") which, taking into account all other
Co-Obligor Payments then previously or concurrently made by or attributable to
any other Co-Obligor, exceeds the amount of the Co-Obligor Payment which
otherwise would have been made by or attributable to such Co-Obligor if each
such Co-Obligor had paid the aggregate Obligations satisfied by such Co-Obligor
Payments in the same proportion as such Co-Obligor's Allocable Amount in effect
immediately prior to such Co-Obligor Payment bore to the aggregate Allocable
Amounts of all such Co-Obligors in effect immediately prior to such Co-Obligor
Payment, then such Co-Obligor shall be entitled to contribution and
indemnification from, and to be reimbursed by, each of the other Co-Obligors for
the amount of such excess, pro rata based upon their respective Allocable
Amounts in effect immediately prior to such Co-Obligor Payment.
2. Miscellaneous.
(a) This Agreement is intended only to define the relative
rights of the Co-Obligors, and nothing set forth in this Agreement is intended
to or shall impair the obligations of the Co-Obligors, jointly and severally, to
pay any amounts, as and when the same shall become due and payable in accordance
with the terms of the Guaranty.
(b) The parties hereto acknowledge that the rights of
contribution and indemnification hereunder shall constitute assets in favor of
the Co-Obligor to which such contribution and indemnification are owing.
(c) This Agreement shall become effective upon its execution
by each of the Co-Obligors and shall continue in full force and effect and may
not be terminated or otherwise revoked by any Co-Obligor until all of the
Obligations under and as defined in the Credit Agreement shall have been
indefeasibly paid in full and discharged and the Credit Agreement shall have
been terminated.
3. Additional Co-Obligors. Pursuant to Section 6.10(ii) of
the Credit Agreement, any Subsidiary of the Borrower formed or acquired after
the date hereof shall become obligated as a Co-Obligor hereunder (each as fully
as though an original signatory hereto) within the applicable time period
specified by the Credit Agreement by executing and delivering to the Agent (with
sufficient copies for the Agent and each of the Lenders) that certain
supplemental contribution agreement in the form of Exhibit A attached hereto
together with such additional supporting documentation required pursuant to
Section 6.10 of the Credit Agreement.
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IN WITNESS WHEREOF, each of the Co-Obligors has executed and
delivered this Agreement as of the date first above written.
AMERICAN CLASSIC VOYAGES CO.
CRUISE AMERICA TRAVEL, INCORPORATED
DQSB II, INC.
DQSC PROPERTY CO.
By: / s / Jordan B. Allen
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Name: Jordan B. Allen
Title: Executive Vice President
GREAT OCEAN CRUISE LINE, L.L.C.
GREAT RIVER CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co.,
a Managing Member
By: / s / Jordan B. Allen
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Name: Jordan B. Allen
Title: Executive Vice President
By: DQSB II, Inc., a Managing Member
By: / s / Jordan B. Allen
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Name: Jordan B. Allen
Title: Executive Vice President
GREAT PACIFIC NW CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co.,
its Managing Member
By: / s / Jordan B. Allen
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Name: Jordan B. Allen
Title: Executive Vice President
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EXHIBIT A
SUPPLEMENTAL CONTRIBUTION AGREEMENT
_____________, _____
The Chase Manhattan Bank, as Agent
for the Lenders party to the Credit Agreement
(as defined below)
Ladies and Gentlemen:
Reference is hereby made to (i) that certain Amended and Restated
Credit Agreement, dated as of September [ ], 2000 among The Delta Queen
Steamboat Co., the Lenders party thereto and The Chase Manhattan Bank, as a
Lender, Issuing Bank and as agent for the Lenders (the "Agent") (as amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), and (ii) that certain Amended and Restated Contribution Agreement,
dated as of September [ ], 2000, among American Classic Voyages Co., Cruise
America Travel, Incorporated, DQSB II, Inc., DQSC Property Co., Great River
Cruise Line, L.L.C., Great Ocean Cruise Line, L.L.C. and Great Pacific NW Cruise
Line, L.L.C. (each individually a "Co-Obligor" and collectively the
"Co-Obligors") (as amended, restated, supplemented or otherwise modified from
time to time, the "Contribution Agreement"). Terms not defined herein which are
defined in the Credit Agreement shall have for the purposes hereof the meaning
provided therein.
In accordance with Section 6.10 (ii) of the Credit Agreement, the
undersigned, [CO-OBLIGOR], a ___, hereby elects to be a Co-Obligor for all
purposes of the Contribution Agreement, effective from the date hereof.
Without limiting the generality of the foregoing, the undersigned
hereby agrees to perform all of the obligations of a Co-Obligor under, and to be
bound in all respects by the terms of the Contribution Agreement to the same
extent and with the same force and effect as if the undersigned were a direct
signatory thereto.
This Supplemental Contribution Agreement shall be construed in
accordance with and governed by the internal laws of the State of New York
except for its conflict of laws principles.
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IN WITNESS WHEREOF, this Supplemental Contribution Agreement has been
duly executed by the undersigned as of _________, _____.
[CO-OBLIGOR]
By:_____________________________________
Name:___________________________________
Title:__________________________________