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EXHIBIT 4(ii)(a)(12)
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FIRST AMENDMENT TO
PREFERRED SHIP MORTGAGE
ON 100.000% OF THE VESSEL "DELTA QUEEN"
OFFICIAL NUMBER 225875
EXECUTED BY
GREAT RIVER CRUISE LINE, L.L.C.
IN FAVOR OF
THE CHASE MANHATTAN BANK,
AS AGENT AND TRUSTEE FOR THE BENEFIT OF THE
FINANCIAL INSTITUTIONS DESIGNATED IN THE
TRUST INDENTURE
DATED AS OF FEBRUARY 25, 1999, AS AMENDED
EXECUTED ON THE 14TH DAY OF SEPTEMBER, 2000
OBLIGATIONS SECURED, DIRECT OR CONTINGENT
(EXCLUSIVE OF INTEREST, EXPENSES AND FEES) PURSUANT TO
46 U.S.C.A. SS. 31321(B)(3) AND 46 CFR SS. 67.235,
MAXIMUM PRINCIPAL BALANCE:
$30,000,000
VESSEL NAME: DELTA QUEEN
HOME PORT: NEW ORLEANS, LOUISIANA
GROSS TONNAGE: 3,360 TONS
NET TONNAGE: 1,160 TONS
YEAR BUILT: 1926
OWNER AND MORTGAGOR: MORTGAGEE:
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GREAT RIVER CRUISE LINE, L.L.C. THE CHASE MANHATTAN BANK,
ROBIN STREET WHARF AS AGENT AND TRUSTEE FOR THE BENEFIT
1380 PORT OF NEW ORLEANS PLACE OF THE FINANCIAL INSTITUTIONS DESIGNATED
NEW ORLEANS, LOUISIANA 70130-1890 HEREIN (TIN: 13-499-4650)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
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FIRST AMENDMENT TO UNITED STATES OF AMERICA
PREFERRED SHIP MORTGAGE
STATE OF ILLINOIS
BY:
COUNTY OF COOK
GREAT RIVER CRUISE LINE, L.L.C.
IN FAVOR OF:
THE CHASE MANHATTAN BANK, A NEW YORK
BANKING CORPORATION, AS AGENT AND
TRUSTEE (IN SUCH CAPACITY, "AGENT") FOR
ITSELF AND THE FINANCIAL INSTITUTIONS
DESIGNATED IN THE TRUST INDENTURE DATED
AS OF FEBRUARY 25, 1999, AS AMENDED
BE IT KNOWN, that on the 14th day of September, 2000, in the presence of
the undersigned competent witnesses, personally came and appeared:
GREAT RIVER CRUISE LINE, L.L.C., a Delaware limited liability company (the
"Owner" and "Mortgagor") whose mailing address is Robin Street Wharf, 1380
Port of New Orleans Place, New Orleans, Louisiana 70130, whose taxpayer
identification number is 72-1353488, successor by merger to GREAT RIVER
CRUISE LINE, INC., a Delaware corporation, as evidenced by Certificate of
Merger filed with the Delaware Secretary of State on December 27, 1996, but
effective as of December 31, 1996, represented herein by and through The
Delta Queen Steamboat Co., a Delaware corporation, a managing member,
itself appearing through ____________________________, its executive vice
president and duly authorized representative pursuant to a resolution of
its board of directors, a certified copy of which is attached hereto, and
DQSB II, Inc., a Delaware corporation, a managing member, itself appearing
through _____________________, its executive vice president and duly
authorized representative pursuant to a resolution of its board of
directors, a certified copy of which is attached hereto; which managing
members are authorized under the terms of Owner's operating agreement and a
unanimous consent resolution of its managing members, a certified copy of
which is attached hereto;
WHO DECLARED that this First Amendment to Preferred Ship Mortgage (this
"First Amendment") is hereby granted, subject to the following premises, terms
and conditions:
PRELIMINARY STATEMENT:
A. Mortgagor has previously granted that certain Preferred Ship
Mortgage dated February 25, 1999 (the "Original Mortgage," together with any
amendments thereto, including this First Amendment, "Mortgage"), which Original
Mortgage was recorded with the National Vessel Documentation Center of the
United States Coast Guard on March 4, 1999 at 2:38 P.M. in Book 99-25, Page 533;
and
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B. The Original Mortgage was granted to secure payment of the
Obligations (as defined therein), up to a maximum secured principal amount of
$70,000,000.00, together with interest, costs, attorneys' fees and protective
advances, which Obligations included all indebtedness of Mortgagor under the
Subsidiary Guaranty dated February 25, 1999 (together with any amendments
thereto, and renewals and replacements thereof, the "Guaranty"); and
C. Such Guaranty guaranteed payment of all of the indebtedness of The
Delta Queen Steamboat Co. ("Borrower") under that certain Credit Agreement dated
as of February 25, 1999, by and among Borrower, Mortgagee and the other
Financial Institutions listed on the signature pages thereof, supplemented or
otherwise modified from time to time (the "Credit Agreement"); and
D. Borrower and Mortgagor have requested that the principal amount of
the credit facility under the Credit Agreement be modified and reduced from a
maximum of $70,000,000.00 to a maximum of $30,000,000.00, and to further amend
the Credit Agreement with respect to certain other matters, all to be more fully
reflected in an Amended and Restated Credit Agreement by and among Borrower,
Mortgagee and the other Financial Institutions, dated as of SEPTEMBER 14, 2000
(the "Restated Credit Agreement" or "Credit Agreement"); and
E. Mortgagor wishes to provide and confirm that the Obligations secured
by the Mortgage include all obligations guaranteed by Mortgagor under the
Guaranty, which include, without limitation, all of the indebtedness of Borrower
under the Credit Agreement, up to a maximum secured principal amount of
$30,000,000.00, together with interest, costs, attorneys' fees and protective
advances;
NOW THEREFORE, in consideration of the premises and to provide for and
evidence the amendment and modification of the Original Mortgage, Mortgagor
hereby agrees as follows:
SECTION 1. GUARANTEED OBLIGATIONS. Mortgagor hereby acknowledges and
confirms that the "Guaranteed Obligations" which are secured by its Guaranty,
and which comprise the "Obligations" secured by the Mortgage, were intended to
include, and do now and shall hereafter include, any and all Obligations of
Borrower under the Credit Agreement (up to the maximum principal limits provided
herein), as the same Credit Agreement is amended, restated, supplemented or
otherwise modified from time to time, including any amendments to the Credit
Agreement that increase the amount of the credit facility thereunder, change the
interest rate, change the maturity dates, or that effect other changes of
whatever nature and kind whatsoever. In accordance with the foregoing, and
without limiting the foregoing, Mortgagor confirms and acknowledges that the
"Guaranteed Obligations" secured by the Guaranty, and the "Obligations" secured
by the Mortgage, were intended to include, and do now and shall hereafter
include, any and all obligations, whether for principal, interest, fees and
other amounts, that may now or hereafter be due from Borrower in connection with
the Restated Credit Agreement, as amended, restated, supplemented or otherwise
modified from time to time, all up to a maximum secured principal amount of
$30,000,000.00, together with interest, costs, attorneys' fees and protective
advances.
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SECTION 2. OBLIGATIONS SECURED BY MORTGAGE. The Mortgage is hereby
modified and amended to provide that the maximum principal obligations secured
thereunder, whether direct or contingent, exclusive of interest, expenses and
fees, pursuant to 46 U.S.C.A.ss.31321(b)(3) and 46 CFR ss.67.235(a)(2)(iii) is
reduced from $70,000,000 to $30,000,000.00.
SECTION 3. BORROWINGS SECURED. It is the intention of Mortgagor that
all Borrowings made under the Original Credit Agreement (including all
Borrowings made under the Restated Credit Agreement), together with any and all
other "Obligations" as described in the Original Mortgage and confirmed herein,
are secured under the Mortgage, as amended, with retroactive priority to the
date of the Original Mortgage, in conformance with the provisions of applicable
law, up to a maximum principal secured amount of $30,000,000.00, together with
interest, costs, attorneys' fees and protective advances.
SECTION 4. NOTICE OF MORTGAGE. Section 1.8 of the Original Mortgage is
hereby amended, modified and supplemented by deleting the Notice of Preferred
Ship Mortgage as set forth therein and replacing it with the following:
NOTICE OF PREFERRED SHIP MORTGAGE
This Vessel is owned by Great River Cruise Line, L.L.C. and is subject
to a Preferred Ship Mortgage, dated February 25, 1999, as amended, in
favor of The Chase Manhattan Bank, as Agent and Trustee pursuant to a
Trust Indenture dated as of February 25, 1999, as amended, among the
aforesaid Agent and Trustee, as Mortgagee, and the financial
institutions designated therein, under authority of Title 46 U.S.C.A.
ss.31301 et seq. Under the terms of said Mortgage, as amended, neither
the Owner, any charterer, the Master, nor any other Person has any
right, power or authority to create, incur or permit to be placed or
imposed upon this Vessel, its freights, profits or hire, any lien
whatsoever, other than the lien of, and liens permitted by, said
Mortgage, as amended.
SECTION 5. EFFECTIVENESS. Except as amended and modified by this First
Amendment, the Mortgage is in all respects ratified, confirmed and carried
forward and it shall be and remain in full force and effect. Nothing herein
shall constitute a novation, release, termination or reissuance of the Mortgage,
or a novation of the indebtedness evidenced by the Original Credit Agreement.
Terms not otherwise defined herein shall have the meanings provided in the
Original Mortgage.
SECTION 6. PROVISION CONCERNING TRUST INDENTURE. This First Amendment
and the Mortgage have been executed and delivered to Mortgagee in trust, and are
held by Mortgagee in trust, pursuant to that certain Trust Indenture by and
among Mortgagor, Mortgagee and the Financial Institutions, dated February 25,
1999, as the same may be amended from time to time, including the First
Amendment to Trust Indenture dated of even date herewith.
SECTION 7. FILING. Mortgagor hereby authorizes and directs that this
First Amendment be filed with the National Vessel Documentation center of the
U.S. Coast Guard ("NVDC") and that notation of this First Amendment be made on
the official records maintained by NVDC. Furthermore, the Certificate of
Ownership with respect to the Vessel shall be supplemented and endorsed to
reflect the filing of the First Amendment.
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SECTION 8. COUNTERPARTS. This First Amendment may be executed in any
number of counterparts, each of which, when so executed, shall be deemed to be
an original and such counterparts, added together, shall constitute and be one
and the same instrument.
[Remainder of Page Intentionally Left Blank]
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THUS DONE AND SIGNED, on the day, month and year first written above,
in the presence of the undersigned competent witnesses, who hereunto sign their
names with Mortgagor after reading of the whole.
WITNESSES: MORTGAGOR:
GREAT RIVER CRUISE LINE, L.L.C.
BY: THE DELTA QUEEN STEAMBOAT CO.,
A MANAGING MEMBER
/ s / Shahem Zenni
- ------------------------------ BY: / S / JORDAN B. ALLEN
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NAME: JORDAN B. ALLEN
TITLE: EXECUTIVE VICE PRESIDENT
/ s / Pam Stringer
- ------------------------------ BY: DQSB II, INC.,
A MANAGING MEMBER
BY: / S / JORDAN B. ALLEN
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NAME: JORDAN B. ALLEN
TITLE: EXECUTIVE VICE PRESIDENT
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THUS DONE AND SIGNED on the day, month and year first written above, in
the presence of the undersigned competent witnesses, who hereunto sign their
names with Mortgagee after reading of the whole.
WITNESSES: MORTGAGEE:
THE CHASE MANHATTAN BANK,
AS TRUSTEE AND AGENT
/ s / Alexander Schneider / S / JONATHAN E. TWICHELL
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BY: JONATHAN E. TWICHELL
/ s / Mary C. Lum TITLE: VICE PRESIDENT
- ------------------------------
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ACKNOWLEDGMENT
STATE OF ILLINOIS
COUNTY OF COOK
BEFORE ME, the undersigned Notary Public, personally came and appeared:
Jordan B. Allen,
the duly authorized Executive Vice President and representative of The Delta
Queen Steamboat Co. and DQSB II, Inc., which said corporations are the sole
managing members of Great River Cruise Line, L.L.C. ("Great River"), who
declared under oath that he is the duly authorized representative of Great River
and its aforesaid managing members, and that he signed the foregoing instrument
with full authorization under the articles of organization of Great River and
the board of directors of each of the managing members, and that the foregoing
Amendment to Preferred Ship Mortgage is the free and voluntary act and deed of
Great River and its managing members, as well as said appearer in his capacity
as the representative of Great River, for the uses, purposes and covenants
therein expressed.
SWORN TO AND SUBSCRIBED BEFORE ME
on the 13th day of September, 2000.
/ s / Barbara A. Shafer
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NOTARY PUBLIC
My Commission Expires: 11/3/01
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ACKNOWLEDGMENT
STATE OF ILLINOIS
COUNTY OF COOK
BEFORE ME, the undersigned Notary Public, personally came and appeared:
Jonathan E. Twichell
the duly authorized Vice President and representative of The Chase Manhattan
Bank, who declared that he/she is the duly authorized representative of The
Chase Manhattan Bank and that he/she signed the above instrument on the
authorization of such corporation's board of directors and that the same is the
free and voluntary act and deed of said corporation, and of himself/herself in
his/her capacity as representative thereof, for the uses and purposes therein
expressed.
SWORN TO AND SUBSCRIBED BEFORE ME
on the 12th day of September, 2000.
/ s / Deborah K. Welles
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NOTARY PUBLIC
My Commission Expires: 3/10/02
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