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EXHIBIT 4.(ii)(d)(19)
Contract No. MA-13050
AMENDMENT NUMBER I TO TITLE XI RESERVE FUND
AND FINANCIAL AGREEMENT
This Amendment Number 1 to Title XI Reserve Fund and Financial
Agreement effective as of January 1, 1996 (this "Amendment"), between Great AQ
Steamboat Co. (the "Company") and the United States of America, represented by
the Secretary of Transportation, acting by and through the Maritime
Administrator (the "Secretary").
Recitals:
A. On August 24, 1995, the Company and the Secretary entered into a Title
XI Reserve Fund and Financial Agreement, Contract No. MA-13050;
B. The Delta Queen Steamboat Company ("DQSC"), parent organization of the
Company, requested that the Secretary consent to the merger of Creative
Endeavors, Inc. ("CEI") with and into the Company, effective as of January 1,
1996, at 12:01 a.m. (the "Merger");
C. On December 29, 1995, the Secretary consented to the Merger, subject to
the following conditions: (1) the Company and the Secretary enter into this
Amendment, (2) the Company and DQSC amend their tax sharing agreement (the "Tax
Agreement") to provide that the Company will receive credits against future tax
payments owed under the Tax Agreement to the extent that the Company loses any
tax benefits as a result of the Merger or the related distributions and (3) the
Company and American Classic Voyages Co. ("AMCV") enter into an agreement that
provides that AMCV shall reimburse the Company for any loss or adverse
financial effect caused by the Merger, the distribution of any of the CEI
Assets (as defined in Section 2 below) or the application of any of the
Company's tax rights to shelter the income of CEI (the "Reimbursement
Agreement").
D. In consideration of the continuing Guarantees by the Secretary, the
benefits to the Company in connection with the Merger and for other valuable
consideration, the Company has agreed to enter into this Amendment Number I to
Title XI Reserve Fund and Financial Agreement.
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, the receipt of which is hereby acknowledged, the Company and the
Secretary are hereby entering into this amendment, subject to the terms and
conditions herein set forth.
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1. Notwithstanding any provision to the contrary contained in the Title XI
Reserve Fund and Financial Agreement, including Sections 13 (c)(6) and (7) of
Exhibit 1 thereto, said agreement is hereby amended in order to provide for and
permit the Merger and the distribution of the CEI Assets, including all
proceeds from any sale thereof, whether by dividend, distribution, advance or
otherwise.
2. The Secretary hereby waives those provisions of the Title XI Reserve
Fund and Financial Agreement that govern, limit and/or restrict distributions
to the extent the provisions relate to the CEI assets, as defined below, and
permits the Company to distribute, whether by dividend, distribution, advance
or otherwise, all properties or assets owned by CEI immediately prior to the
Merger and all cash derived from the operations of CEI's properties or assets
(the "CEI Assets"), including all proceeds from any sale thereof, so long as
(i) the aggregate net sale proceeds of the CEI Assets exceed the liabilities of
CEI existing immediately prior to the Merger (the "CEI Liabilities"), (ii) the
merged company pays or satisfies all of the CEI Liabilities from the proceeds
of the CEI Assets prior to making any other use of the sales proceeds of the
CEI Assets, (iii) the Company incurs no adverse financial effect from the
Merger.
3. The Secretary hereby agrees that the financial effect of the Merger and
any sales or distribution of the CEI Assets are not subject to the depository
and reporting requirements of the Title XI Reserve Fund and Financial
Agreement, except to the extent that the Secretary may request information for
the purpose of enforcing or reviewing the provisions of this Amendment, the
Title XI Reserve Fund and Financial Agreement, the Tax Agreement or the
Reimbursement Agreement.
4. The Company hereby certifies and agrees that, upon the Merger, the
Company shall certify to the Secretary that (i) the aggregate net sale proceeds
of the CEI Assets exceed the CEI Liabilities, (ii) the merged company has paid
or satisfied all of the CEI Liabilities from the proceeds of the CEI Assets
prior to making any other use of the sales proceeds of the CEI Assets and (iii)
the Company has incurred no adverse financial effect from the Merger.
5. In the event of any inconsistency between this Amendment, the Title XI
Reserve Fund and Financial Agreement as originally executed or with Exhibit I
thereto, this Amendment shall control.
This Amendment may be executed in any number of counterparts. All such
counterparts shall be deemed to be originals and shall together constitute but
one and the same instrument.
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IN WITNESS WHEREOF, this Amendment Number I to Title XI Reserve Fund and
Financial Agreement has been executed by the parties hereto as of the day and
year first above written.
GREAT AQ STEAMBOAT CO.
By: /s/ Jordan B. Allen
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Vice President
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Attest: /s/ Robin Mariella
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Title: Assistant Secretary
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UNITED STATES OF AMERICA
SECRETARY OF TRANSPORTATION
By: MARITIME ADMINISTRATOR
By: /s/ Joel C. Richard
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Secretary Maritime Administration
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Attest: /s/ Patricia C. Byrne
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Title: Assistant Secretary
Maritime Administration
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