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4(ii)(a)(4)
EXECUTION COPY
[BORROWER]
LIMITED LIABILITY COMPANY PLEDGE AGREEMENT
THIS LIMITED LIABILITY COMPANY PLEDGE AGREEMENT ("AGREEMENT")
is made as of February 25, 1999 by and between THE DELTA QUEEN STEAMBOAT CO., a
Delaware corporation ("PLEDGOR"), and THE CHASE MANHATTAN BANK, as agent (the
"AGENT"), for its benefit and the benefit of the other Holders of Secured
Obligations (as such term is defined in the Credit Agreement referred to below).
Capitalized terms used herein and not herein defined shall have the same
meanings assigned to such terms in the Credit Agreement described below.
WHEREAS, the Pledgor, certain financial institutions (such
financial institutions being herein referred to collectively as the "LENDERS"),
and the Agent as one of the Lenders and as the agent for the Lenders are parties
to that certain Credit Agreement dated as of February 25, 1999 (as such
agreement may be amended, restated, supplemented or modified from time to time,
the "CREDIT AGREEMENT"), pursuant to which the Lenders have agreed, subject to
certain conditions precedent, to make loans and other financial accommodations
to the Pledgor from time to time.
WHEREAS, it is a condition precedent to the making of the
loans to the Pledgor under the Credit Agreement that this Agreement shall be
executed and delivered by the Pledgor to the Agent, for its benefit and the
benefit of the other Holders of Secured Obligations, and that this Agreement
shall be in full force and effect.
WHEREAS, the Pledgor desires to secure its "LIABILITIES" (as
hereinafter defined) by the grant to the Agent, for its benefit and the benefit
of the other Holders of Secured Obligations of a first priority security
interest in the Pledged Collateral (as hereinafter defined).
ACCORDINGLY, for and in consideration of the foregoing and of
any financial accommodations or extensions of credit (including, without
limitation, any loan or advance by renewal, refinancing or extension of the
agreements described hereinabove or otherwise) heretofore, now or hereafter made
to or for the benefit of the Pledgor pursuant to the Credit Agreement or any
other agreement, instrument or document executed pursuant to or in connection
therewith, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Pledgor and the Agent hereby
agree as follows:
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1. Pledge. (a) The Pledgor hereby pledges, grants and assigns
to the Agent, for the benefit of the Agent and the other Holders of Secured
Obligations, and grants to the Agent for the benefit of the Agent and the other
Holders of Secured Obligations, a security interest in, the following
(collectively, the "PLEDGED COLLATERAL"):
(i) The membership interests of Pledgor in each Subsidiary of
the Pledgor organized as a limited liability company and listed on
Exhibit A attached hereto and made a part hereof (the "LLC
SUBSIDIARIES") now or at any time or times hereafter owned by the
Pledgor, and any certificates representing such membership interests
(such membership interests being identified on Exhibit A, all of the
right, title and interest of the Pledgor in, to and under its
respective percentage interest, shares or units as a member in each LLC
Subsidiary, including, without limitation, Pledgor's interest in (or
allocation of) the profits, losses, income, gains, deductions, credits
or similar items of each LLC Subsidiary and the right to receive
distributions of each LLC Subsidiary's cash, other property, assets,
and all options and warrants for the purchase of membership interests,
whether now existing or hereafter arising, whether arising under the
terms of the Certificate of Formation, the Limited Liability Company
Agreement or any of the other organizational documents (such documents
hereinafter collectively referred to as the "OPERATING AGREEMENTS") of
any LLC Subsidiary, or at law or in equity, or otherwise and any and
all of the proceeds thereof (all of said membership interests,
certificates, and warrants being hereinafter collectively referred to
as the "PLEDGED MEMBERSHIP INTEREST") herewith delivered to the Agent
accompanied by the certificates or other writings evidencing the same,
accompanied by duly executed instruments of transfer or assignments in
blank, all in form and substance satisfactory to the Agent (such
instruments being collectively referred to hereinafter as the "POWERS")
duly executed in blank, and all distributions, cash, instruments and
other property from time to time received, receivable or otherwise
distributed in respect of, or in exchange for, any or all of the
Pledged Membership Interest;
(ii) Any additional membership interests in each LLC
Subsidiary from time to time acquired by the Pledgor in any manner, and
any certificates representing such additional membership interests or
any additional percentage interests, shares, units, options or warrants
of membership interests in each LLC Subsidiary (any such additional
interests shall constitute part of the Pledged Membership Interest and
the Agent is irrevocably authorized to amend Exhibit A from time to
time to reflect such additional interests), and all options, warrants,
distributions, cash, instruments and other rights and options from time
to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of such interests and will promptly
thereafter deliver to the Lender, a certificate duly executed by the
Pledgor describing such percentage interests, certificates, units,
options or warrants and certifying that the same have been duly pledged
hereunder;
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(iii) The property and interests in property described in
Section 3 below; and
(iv) All proceeds of the foregoing.
(b) In the event that the Pledgor shall acquire any membership
interests (or other equity) of any additional Subsidiary formed or acquired as a
limited liability company the membership interests of which are required to be
pledged to the Agent hereunder pursuant to Section 6.10 of the Credit Agreement,
the Pledgor shall execute and deliver to the Agent, for its benefit and the
benefit of the other Holders of Secured Obligations, a supplement to this
Agreement in the form of Exhibit B attached hereto (the "Supplement"), shall
describe such membership interests on Annex A thereto and shall deliver to the
Agent therewith all certificates and other writings representing such membership
interests in such Subsidiary, accompanied by duly executed instruments of
transfer or assignment duly executed in blank by the Pledgor, all within the
time period prescribed by Section 6.10 of the Credit Agreement.
2. Security for Liabilities. The Pledged Collateral secures
the prompt payment, performance and observance of (i) the Obligations and (ii)
the Pledgor's obligations and liabilities under this Agreement and each
agreement, document or instrument executed by the Pledgor pursuant to or in
connection with this Agreement (all such obligations and liabilities of the
Pledgor now or hereafter existing being hereinafter referred to as the
"LIABILITIES").
3. Pledged Collateral Adjustments. If, during the term of this
Agreement:
(a) Any reclassification, readjustment or other change is
declared or made in the capital structure of any LLC Subsidiary, or any
option included within the Pledged Collateral is exercised, or both, or
(b) Any subscription, warrants or any other rights or options
shall be issued in connection with the Pledged Collateral,
then all new, substituted and additional membership interests, certificates,
warrants, rights, options or other securities, issued by reason of any of the
foregoing, shall be immediately delivered to and held by the Agent under the
terms of this Agreement and shall constitute Pledged Collateral hereunder;
provided, however, that nothing contained in this Section 3 shall be deemed to
permit any distribution, issuance of additional membership interests, warrants,
rights or options, reclassification, readjustment or other change in the capital
structure of any LLC Subsidiary which is not expressly permitted in the Credit
Agreement.
4. Subsequent Changes Affecting Pledged Collateral. The
Pledgor represents and warrants that it has made its own arrangements for
keeping itself informed of changes or potential changes affecting the Pledged
Collateral (including, but not limited to, rights to convert,
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rights to subscribe, cash distributions or other distributions, reorganization
or other exchanges, tender offers and voting rights), and the Pledgor agrees
that neither the Agent nor any of the other Holders of Secured Obligations shall
have any obligation to inform the Pledgor of any such changes or potential
changes or to take any action or omit to take any action with respect thereto.
The Agent may, after the occurrence of an Event of Default, without notice and
at its option, transfer or register the Pledged Collateral or any part thereof
into its or its nominee's name with or without any indication that such Pledged
Collateral is subject to the security interest hereunder. In addition, the Agent
may at any time exchange certificates or instruments representing or evidencing
Pledged Membership Interests for certificates or instruments of smaller or
larger denominations.
5. Representations and Warranties. The Pledgor represents and
warrants as follows:
(a) The Pledgor is the sole legal and beneficial owner of the
membership interests in the LLC Subsidiaries pledged to the Agent
pursuant to this Agreement;
(b) This Agreement has been duly and validly authorized,
executed and delivered by Pledgor and constitutes the legal, valid and
binding obligation of the Pledgor enforceable against the Pledgor in
accordance with its terms except as enforcement may be limited by
bankruptcy, insolvency and other similar laws affecting the enforcement
of creditors' rights generally and by moratorium laws from time to time
in effect and general equitable principles;
(c) The Pledgor is the direct beneficial owner of the Pledged
Collateral hereby pledged by it;
(d) The Pledgor owns such Pledged Collateral free and clear of
any Lien, except for the pledge and security interest granted to the
Agent and the other Holders of Secured Obligations pursuant to the Loan
Documents;
(e) The Pledgor shall cause each LLC Subsidiary to make a
notation on its records, which notation shall indicate the security
interest granted hereby, and the Pledgor agrees to execute and file
financing statements pursuant to the Uniform Commercial Code as the
Agent may reasonably request to perfect the security interest granted
hereby;
(f) The pledge of the Pledged Collateral by the Pledgor does
not violate (1) the Operating Agreements of any LLC Subsidiary or any
of the other organizational documents of any LLC Subsidiary; (2) the
certificate of incorporation or by-laws of the Pledgor; (3) any
indenture, mortgage, loan or credit agreement to which the Pledgor or
any LLC Subsidiary is a party or by which any of their respective
properties or assets
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may be bound; or (4) any restriction on such transfer or encumbrance of
such Pledged Collateral;
(g) Except as set forth in the Operating Agreements, there are
no restrictions upon the voting rights associated with, or upon the
transfer of, any of the Pledged Collateral;
(h) Except as set forth in the Operating Agreements, the
Pledgor has the right to vote, pledge, assign and grant a security
interest in or otherwise transfer such Pledged Collateral free of any
Liens;
(i) No authorization, approval, or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required either (i) for the pledge of the Pledged Collateral
pursuant to this Agreement or for the execution, delivery or
performance of this Agreement by the Pledgor or (ii) for the exercise
by the Agent of the voting or other rights provided for in this
Agreement or the remedies in respect of the Pledged Collateral pursuant
to this Agreement (except as may be required in connection with such
disposition by laws affecting the offering and sale of securities
generally);
(j) The pledge of the Pledged Collateral pursuant to this
Agreement creates a valid and perfected first priority security
interest in the Pledged Collateral, in favor of the Agent for the
benefit of the Agent and the other Holders of Secured Obligations,
securing the payment and performance of the Liabilities; and
(k) With respect to each LLC Subsidiary organized under the
laws of Delaware, the pledge of the Pledged Collateral pursuant to this
Agreement constitutes a complete assignment of the Pledged Collateral
pursuant to 6 Del. Code ▇▇▇. Section 18-702 (1996).
6. Voting Rights and Other Powers. During the term of this
Agreement, and except as provided in this Section 6 below, the Pledgor shall
have (i) the right to vote the Pledged Membership Interest on all questions in a
manner not inconsistent with the terms of this Agreement, the Credit Agreement
and any other agreement, instrument or document executed pursuant thereto or in
connection therewith, and (ii) the right to be the member and manager of each
LLC Subsidiary, and shall be entitled to exercise all managerial, election and
other rights relating to the Pledged Collateral. After the occurrence or during
the continuance of an Event of Default, the Agent or the Agent's nominee may, at
the Agent's or such nominee's option and following written notice ("ELECTION
NOTICE") from the Agent to the Pledgor (x) exercise, or direct such Pledgor as
to the exercise of (whereupon such Pledgor shall exercise as so directed), all
voting, consent, managerial, election and other membership and manager rights to
the Pledged Collateral of the Pledgor; such authorization shall constitute an
irrevocable voting proxy from the Pledgor to the Agent or, at the Agent's
option, to the Agent's nominee; and (y) exercise, or direct such Pledgor as to
the exercise of (whereupon the Pledgor shall exercise as so directed), any and
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all rights of conversion, exchange, subscription or any other rights, privileges
or options pertaining to the Pledged Collateral of the Pledgor as if the Agent
were the absolute owner thereof, all without liability except to account for
property actually received by it, but the Agent shall have no duty to exercise
any of the aforesaid rights, privileges or options and shall not be responsible
for any failure so to do or delay in so doing. Under no circumstances shall the
Agent have, or be deemed to have or to have had, any right to exercise, or to
direct the Pledgor to exercise, any voting, managerial, election or other rights
of an owner of the Pledged Collateral, or arising under the Pledged Collateral,
unless and until the Agent shall have delivered to such Pledgor an Election
Notice as described hereinabove.
7. Cash and Other Distributions. (a) So long as no Event of
Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to receive and retain for
its own account free and clear of the lien and security interest
created by this Agreement any and all cash distributions and interest
paid in respect of the Pledged Collateral (including a distribution of
net cash flow) to the extent such distributions are not prohibited by
the Credit Agreement, provided, however, that any and all
(A) distributions and interest paid or payable other
than in cash with respect to, and instruments and other
property received, receivable or otherwise distributed with
respect to, or in exchange for, any of the Pledged Collateral;
(B) other distributions paid or payable in cash with
respect to any of the Pledged Collateral on account of a
partial or total liquidation or dissolution or in connection
with a reduction of capital, capital surplus or paid-in
surplus; and
(C) cash paid, payable or otherwise distributed with
respect to principal of, or in redemption of, or in exchange
for, any of the Pledged Collateral;
shall be Pledged Collateral, and shall be forthwith delivered to the
Agent to hold, for the benefit of the Agent and the other Holders of
Secured Obligations, as Pledged Collateral and shall, if received by
the Pledgor, be received in trust for the Agent, for the benefit of the
Agent and the other Holders of Secured Obligations, be segregated from
the other property or funds of the Pledgor, and be delivered
immediately to the Agent as Pledged Collateral in the same form as so
received (with any necessary endorsement); and
(ii) The Agent shall execute and deliver (or cause to be
executed and delivered) to the Pledgor all such proxies and other
instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to receive the distributions or interest payments
which it is authorized to receive and retain pursuant to clause (i)
above.
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(b) After the occurrence and during the continuance of an Event of
Default:
(i) All rights of the Pledgor to receive the distributions and
interest payments which it would otherwise be authorized to receive and
retain pursuant to Section 7(a)(i) hereof shall cease, and all such
rights shall thereupon become vested in the Agent, for the benefit of
the Agent and the other Holders of Secured Obligations, which shall
thereupon have the sole right to receive and hold as Pledged Collateral
such distributions and interest payments;
(ii) All distributions and interest payments which are
received by the Pledgor contrary to the provisions of clause (i) of
this Section 7(b) shall be received in trust for the Agent, for the
benefit of the Agent and the other Holders of Secured Obligations,
shall be segregated from other funds of the Pledgor and shall be paid
over immediately to the Agent as Pledged Collateral in the same form as
so received (with any necessary endorsements).
(c) All sums of money that are delivered to the Agent pursuant to this
Section 7 shall be deposited into an interest bearing account with the Agent
(the "CASH COLLATERAL ACCOUNT"). Some or all of the funds from time to time in
the Cash Collateral Account may be invested in time deposits, including, without
limitation, certificates of deposit issued by the Agent (such certificates of
deposit or other time deposits being hereinafter referred to, collectively, as
"TIME DEPOSITS"), that are reasonably satisfactory to the Agent after
consultation with the Pledgor. Interest earned on the Cash Collateral Account
and on the Time Deposits, and the principal of the Time Deposits at maturity
that is not invested in new Time Deposits, shall be deposited in the Cash
Collateral Account. The Cash Collateral Account, all sums from time to time
standing to the credit of the Cash Collateral Account, any and all Time
Deposits, any and all instruments or other writings evidencing Time Deposits and
any and all proceeds of any thereof are hereinafter referred to as the "Cash
Collateral" and shall constitute Pledged Collateral hereunder. Except as
otherwise expressly provided in Section 13, the Pledgor shall have no right to
withdraw sums from the Cash Collateral Account, to receive any of the Cash
Collateral or to require the agent to part with the Agent's possession of any
instruments or other writings evidencing any Time Deposits.
8. Transfers and Other Liens. The Pledgor agrees that except
as may be permitted by the Credit Agreement, it will not (i) sell or otherwise
dispose of, or grant any option with respect to, any of the Pledged Collateral
without the prior written consent of the Agent, or (ii) create or permit to
exist any Lien upon or with respect to any of the Pledged Collateral, except for
the security interest under this Agreement. To the extent additional or
different members of any LLC Subsidiary are permitted, Pledgor shall cause as a
condition to permitting such entity to become a member that the new member
consent to (i) the terms of this Agreement; (ii) the pledge and assignment of
the Pledged Collateral; and (iii) the rights granted hereunder for the Agent to
become the/a member of such LLC Subsidiary at its election.
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9. Remedies. (a) The Agent shall have, in addition to any
other rights given under this Agreement or by law, all of the rights and
remedies with respect to the Pledged Collateral of a secured party under the
Uniform Commercial Code as in effect in the State of New York. After the
occurrence and during the continuance of an Event of Default and following
written notice to the Pledgor, the Agent (personally or through an agent) is
hereby authorized and empowered to transfer and register in its name or in the
name of its nominee the whole or any part of the Pledged Collateral, to exercise
all voting rights with respect thereto, to collect and receive all cash
distributions and other distributions made thereon, and to otherwise act with
respect to the Pledged Collateral as though the Agent were the outright owner
thereof and the sole member and manager of each LLC Subsidiary, the Pledgor
hereby irrevocably constituting and appointing the Agent as the proxy and
attorney-in-fact of the Pledgor, with full power of substitution to do so, such
proxy being effective during the existence of an Event of Default and following
written notice thereof; provided, however, that the Agent shall have no duty to
exercise any such right or to preserve the same and shall not be liable for any
failure to do so or for any delay in doing so. In addition, after the occurrence
of an Event of Default, the Agent shall have such powers of sale and other
powers as may be conferred by applicable law. With respect to the Pledged
Collateral or any part thereof which shall then be in or shall thereafter come
into the possession or custody of the Agent or which the Agent shall otherwise
have the ability to transfer under applicable law, the Agent may, in its sole
discretion, without notice except as specified below, after the occurrence of an
Event of Default, sell or cause the same to be sold at any exchange, broker's
board or at public or private sale, in one or more sales or lots, at such price
as the Agent may deem best, for cash or on credit or for future delivery,
without assumption of any credit risk, and the purchaser of any or all of the
Pledged Collateral so sold shall thereafter own the same, absolutely free from
any claim, encumbrance or right of any kind whatsoever. The Agent and each of
the other Holders of Secured Obligations may, in its own name, or in the name of
a designee or nominee, buy the Pledged Collateral at any public sale and, if
permitted by applicable law, buy the Pledged Collateral at any private sale. The
Pledgor will pay to the Agent all reasonable expenses (including, without
limitation, court costs and reasonable attorneys' and paralegals' fees and
expenses) of, or incidental to, the enforcement of any of the provisions hereof.
The Agent agrees to distribute any proceeds of the sale of the Pledged
Collateral in accordance with the Credit Agreement and the Pledgor shall remain
liable for any deficiency following the sale of the Pledged Collateral.
(b) Unless any of the Pledged Collateral threatens to decline
speedily in value or is or becomes of a type sold on a recognized market, the
Agent will give the Pledgor reasonable notice of the time and place of any
public sale thereof, or of the time after which any private sale or other
intended disposition is to be made. Any sale of the Pledged Collateral conducted
in conformity with reasonable commercial practices of banks, commercial finance
companies, insurance companies or other financial institutions disposing of
property similar to the Pledged Collateral shall be deemed to be commercially
reasonable. Notwithstanding any provision to the contrary contained herein, the
Pledgor agrees that any requirements of reasonable notice shall be met if such
notice is received by the Pledgor as provided in Section 25 below at least ten
(10)
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Business Days before the time of the sale or disposition; provided, however,
that Agent may give any shorter notice that is commercially reasonable under the
circumstances. Any other requirement of notice, demand or advertisement for sale
is waived, to the extent permitted by law.
(c) In view of the fact that federal and state securities laws
may impose certain restrictions on the method by which a sale of the Pledged
Collateral may be effected after a Default, the Pledgor agrees that after the
occurrence of an Event of Default, the Agent may, from time to time, attempt to
sell all or any part of the Pledged Collateral by means of a private placement
restricting the bidders and prospective purchasers to those who are qualified
and will represent and agree that they are purchasing for investment only and
not for distribution. In so doing, the Agent may solicit offers to buy the
Pledged Collateral, or any part of it, from a limited number of investors deemed
by the Agent, in its reasonable judgment, to be financially responsible parties
who might be interested in purchasing the Pledged Collateral. If the Agent
solicits such offers from not less than four (4) such investors, then the
acceptance by the Agent of the highest offer obtained therefrom shall be deemed
to be a commercially reasonable method of disposing of such Pledged Collateral;
provided, however, that this Section does not impose a requirement that the
Agent solicit offers from four or more investors in order for the sale to be
commercially reasonable.
10. Security Interest Absolute. All rights of the Agent and
security interests hereunder, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of:
(i) Any lack of validity or enforceability of the Credit
Agreement or any other agreement or instrument relating thereto;
(ii) Any change in the time, manner or place of payment of, or
in any other term of, all or any part of the Liabilities, or any other
amendment or waiver of or any consent to any departure from the Credit
Agreement;
(iii) Any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any part of the Liabilities; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Pledgor in respect of the
Liabilities or of this Agreement.
11. Agent Appointed Attorney-in-Fact. The Pledgor hereby
appoints the Agent its attorney-in-fact, with full authority, in the name of the
Pledgor or otherwise, after the occurrence and during the continuation of an
Event of Default, from time to time in the Agent's sole discretion, to take any
action and to execute any instrument which the Agent may deem
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necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation, to receive, endorse and collect all instruments made payable
to the Pledgor representing any cash distribution, interest payment or other
distribution in respect of the Pledged Collateral or any part thereof and to
give full discharge for the same, to exercise all rights of a member and manager
(upon the election of the Agent) such as all voting, consent, managerial and
other member rights, and to arrange for the transfer of all or any part of the
Pledged Collateral on the books of any LLC Subsidiary to the name of the Agent
or the Agent's nominee.
12. Waivers; Marshalling. (a) The Pledgor waives presentment
and demand for payment of any of the Liabilities, protest and notice of dishonor
or default with respect to any of the Liabilities and all other notices to which
the Pledgor might otherwise be entitled except as otherwise expressly provided
herein or in the Credit Agreement.
(b) Neither the Agent nor any other Holder of Secured Obligations shall
be required to ▇▇▇▇▇▇▇▇ any present or future collateral security for (including
but not limited to this Agreement and the Pledged Collateral), or other
assurances of payment of, the Obligations or any of them, or to resort to such
collateral security or other assurances of payment in any particular order. All
of the Agent's rights hereunder and of the other Holders of Secured Obligations
in respect of such collateral security and other assurances of payment shall be
cumulative and in addition to all other rights, however existing or arising. To
the extent that it lawfully may, the Pledgor hereby agrees that it will not
invoke any law relating to the marshalling of collateral that might cause delay
in or impede the enforcement of the Agent's rights under this Agreement or under
any other instrument evidencing any of the Obligations or under which any of the
Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and to the extent that it lawfully may,
the Pledgor hereby irrevocably waives the benefits of all such laws.
13. Term. This Agreement shall remain in full force and effect
until the Liabilities (other than continuing contingent indemnity obligations)
have been fully and indefeasibly paid in cash and the Credit Agreement has
terminated pursuant to its terms. Upon the termination of this Agreement as
provided above (other than as a result of the sale of the Pledged Collateral),
the Agent will release the security interest created hereunder and, if it then
has possession of the Pledged Membership Interest or other Pledged Collateral,
will promptly deliver the Pledged Membership Interest and the Powers or such
other Pledged Collateral to the Pledgor.
14. Definitions. The singular shall include the plural and
vice versa and any gender shall include any other gender as the context may
require.
15. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Pledgor, the Agent, for the benefit of
itself and the other Holders of Secured
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Obligations, and their respective successors and assigns. The Pledgor's
successors and assigns shall include, without limitation, a receiver, trustee or
debtor-in-possession of or for the Pledgor.
16. GOVERNING LAW. THE AGENT HEREBY ACCEPTS THIS AGREEMENT, ON
BEHALF OF ITSELF AND THE OTHER HOLDERS OF SECURED OBLIGATIONS, AT NEW YORK, NEW
YORK BY ACKNOWLEDGING AND AGREEING TO IT THERE. ANY DISPUTE BETWEEN THE AGENT OR
ANY OTHER HOLDER OF SECURED OBLIGATIONS AND THE PLEDGOR ARISING OUT OF OR
RELATED TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS
AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. Consent to Jurisdiction; Counterclaims; Forum Non
Conveniens. (a) Exclusive Jurisdiction. Except as provided in subsection (b) of
this Section 17, the Agent, on behalf of itself and the other Holders of Secured
Obligations, and the Pledgor agree that all disputes between them arising out of
or related to the relationship established between them in connection with this
Agreement, whether arising in contract, tort, equity, or otherwise, shall be
resolved only by state or federal courts located in New York, New York, but the
parties acknowledge that any appeals from those courts may have to be heard by a
court located outside of New York, New York.
(b) Other Jurisdictions. The Agent shall have the right to
proceed against the Pledgor or its real or personal property in a court in any
location to enable the Agent to obtain personal jurisdiction over the Pledgor,
to realize on the Pledged Collateral or any other security for the Liabilities
or to enforce a judgment or other court order entered in favor of the Agent. The
Pledgor shall not assert any permissive counterclaims in any proceeding brought
by the Agent arising out of or relating to this Agreement.
(c) Venue; Forum Non Conveniens. Each of the Pledgor and the
Agent, for itself and on behalf of the other Holders of Secured Obligations,
waives any objection that it may have (including, without limitation, any
objection to the laying of venue or based on forum non conveniens) to the
location of the court in which any proceeding is commenced in accordance with
this Section 17.
18. Service of Process. The Pledgor waives personal service of
any process upon it and, as security for the Liabilities, irrevocably appoints
[The Prentice Hall Corporation System, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇], as its registered agent for the purpose of accepting service of
process issued by any court.
19. WAIVER OF JURY TRIAL. EACH OF THE PLEDGOR AND THE AGENT,
FOR ITSELF AND ON BEHALF OF THE OTHER HOLDERS OF SECURED OBLIGATIONS, WAIVES ANY
RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN THE AGENT OR ANY OTHER HOLDER OF SECURED OBLIGATIONS AND THE
PLEDGOR ARISING OUT OF OR RELATED TO THE
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TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. THE PLEDGOR, THE AGENT
OR ANY OTHER HOLDER OF SECURED OBLIGATIONS MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
20. Waiver of Bond. The Pledgor waives the posting of any bond
otherwise required of the Agent in connection with any judicial process or
proceeding to realize on the Pledged Collateral or any other security for the
Liabilities, to enforce any judgment or other court order entered in favor of
the Agent, or to enforce by specific performance, temporary restraining order,
or preliminary or permanent injunction, this Agreement or any other agreement or
document between the Agent and the Pledgor.
21. Advice of Counsel. The Pledgor represents and warrants to
the Agent and the other Holders of Secured Obligations that it has consulted
with its legal counsel regarding all waivers under this Agreement, including
without limitation those under Section 12 and Sections 16 through 20 hereof,
that it believes that it fully understands all rights that it is waiving and the
effect of such waivers, that it assumes the risk of any misunderstanding that it
may have regarding any of the foregoing, and that it intends that such waivers
shall be a material inducement to the Agent and the other Holders of Secured
Obligations to extend the indebtedness secured hereby.
22. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but, if any provision of this Agreement shall be held to be
prohibited or invalid under applicable law, such provision shall be ineffective
only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
23. Further Assurances. The Pledgor agrees that it will
cooperate with the Agent and will execute and deliver, or cause to be executed
and delivered, all such other stock powers, proxies, instruments and documents,
and will take all such other actions, including, without limitation, the
execution and filing of financing statements, as the Agent may reasonably
request from time to time in order to carry out the provisions and purposes of
this Agreement.
24. The Agent's Duty of Care. The Agent shall not be liable
for any acts, omissions, errors of judgment or mistakes of fact or law,
including, without limitation, acts, omissions, errors or mistakes with respect
to the Pledged Collateral, except for those arising out of or in connection with
the Agent's (i) gross negligence or willful misconduct, or (ii) failure to use
reasonable care with respect to the safe custody of the Pledged Collateral in
the Agent's possession. Without limiting the generality of the foregoing, the
Agent shall be under no obligation to take any steps necessary to preserve
rights in the Pledged Collateral against any
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other parties but may do so at its option. All expenses incurred in connection
therewith shall be for the sole account of the Pledgor, and shall constitute
part of the Liabilities secured hereby.
25. Notices. All notices and other communications required or
desired to be served, given or delivered hereunder shall be made in the manner
set forth in the Credit Agreement.
26. Amendments, Waivers and Consents. No amendment or waiver
of any provision of this Agreement nor consent to any departure by the Pledgor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Agent pursuant to the terms of the Credit Agreement, and then
such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
27. Section Headings. The section headings herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
28. Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be an original, but all of
which shall together constitute one and the same agreement.
29. Merger. This Agreement represents the final agreement of
the Pledgor, the Agent and the other Holders of Secured Obligations with respect
to the matters contained herein and may not be contradicted by evidence of prior
or contemporaneous agreements, or subsequent oral agreements, between the
Pledgor and the Agent or any other Holder of Secured Obligations.
30. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden or proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
IN WITNESS WHEREOF, the Pledgor and the Agent have executed
this Agreement as of the date set forth above.
THE DELTA QUEEN STEAMBOAT CO.
By: /s/ JORDAN ▇. ▇▇▇▇▇
------------------------------
Name: Jordan ▇. ▇▇▇▇▇
Title: Executive Vice President
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THE CHASE MANHATTAN BANK,
as Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Title: Vice President
---------------------
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ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the
foregoing Agreement, agrees promptly to note on its books the security interests
and assignment granted under such Agreement, and waives any rights or
requirement at any time hereafter to receive a copy of such Agreement in
connection with the registration of any Pledged Collateral in the name of the
Agent or its nominee or the exercise of voting rights by the Agent or its
nominee.
GREAT RIVER CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co.,
a Managing Member
By: /s/ JORDAN ▇. ▇▇▇▇▇
------------------------------
Name: Jordan ▇. ▇▇▇▇▇
Title: Executive Vice President
By: DQSB II, Inc., a Managing Member
By: /s/ JORDAN ▇. ▇▇▇▇▇
------------------------------
Name: Jordan ▇. ▇▇▇▇▇
Title: Executive Vice President
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ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the
foregoing Agreement, agrees promptly to note on its books the security interests
and assignment granted under such Agreement, and waives any rights or
requirement at any time hereafter to receive a copy of such Agreement in
connection with the registration of any Pledged Collateral in the name of the
Agent or its nominee or the exercise of voting rights by the Agent or its
nominee.
GREAT OCEAN CRUISE LINE, L.L.C.
By: The Delta Queen Steamboat Co.,
a Managing Member
By: /s/ JORDAN ▇. ▇▇▇▇▇
------------------------------
Name: Jordan ▇. ▇▇▇▇▇
Title: Executive Vice President
By: DQSB II, Inc., a Managing Member
By: /s/ JORDAN ▇. ▇▇▇▇▇
------------------------------
Name: Jordan ▇. ▇▇▇▇▇
Title: Executive Vice President
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CONSENT
The undersigned hereby acknowledges receipt of a copy of the
foregoing Agreement and consents to the pledge by The Delta Queen Steamboat Co.
of its membership interests in GRCL and GOCL to the Agent.
DQSB II, INC.
By:___________________________
Name: Jordan ▇. ▇▇▇▇▇
Title: Executive Vice President
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EXHIBIT A
to
LIMITED LIABILITY COMPANY PLEDGE AGREEMENT
dated as of February _____, 1999
Pledged Membership Interests
Percentage of
Membership Interest
Name of the Pledgor
---- -------------------
Great River Cruise Line, L.L.C. 99%
Great Ocean Cruise Line, L.L.C. 99%
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EXHIBIT B
SUPPLEMENT
to
LIMITED LIABILITY COMPANY PLEDGE AGREEMENT
This Supplement is made as of , to the
Limited Liability Company Pledge Agreement dated as of February , 1999 (as
amended, supplemented, modified or restated from time to time, the "LLC Pledge
Agreement"), by and between THE DELTA QUEEN STEAMBOAT CO., a Delaware
corporation (the "Pledgor") and THE CHASE MANHATTAN BANK, as Agent, for its
benefit and the benefit of the other Holders of Secured Obligations (as such
term is referred to and defined in the "Credit Agreement" referred to below).
RECITALS: The Pledgor, certain Lenders and the Agent are
parties to that certain Credit Agreement dated as of February , 1999, (as
amended, supplemented, modified or restated from time to time, the "Credit
Agreement"; capitalized terms used herein without definition shall have the
respective meanings assigned thereto in the Credit Agreement or the LLC Pledge
Agreement). Pursuant to Section 1(b) of the LLC Pledge Agreement, the Pledgor is
required to execute and deliver to the Agent, for its benefit and the benefit of
the other Holders of Secured Obligations, this Supplement and all of the
membership interests of the Subsidiaries listed on Annex 1 attached hereto,
together with any certificate or other writing representing such membership
interests.
ACCORDINGLY, the Pledgor agrees with the Agent as follows:
1. Pledge of Membership Interests. The membership interests of
each of the Subsidiaries described on Annex 1 hereto, together with any
certificates representing such membership interest and delivered to the Agent
herewith (the "Pledged Interests") shall constitute "Pledged Collateral" as
defined in the LLC Pledge Agreement as if such membership interests had
originally been described on Exhibit A to the LLC Pledge Agreement, shall be
subject to the pledge and security interest created by, and all other terms,
conditions and covenants contained in, the LLC Pledge Agreement, and shall
secure the payment and performance of the Obligations as provided in the LLC
Pledge Agreement.
2. Representations and Warranties. The representations and
warranties of the Pledgor contained in Section 5 of the LLC Pledge Agreement are
true and correct in all material respects with respect to the Pledged Interests
as of the date hereof.
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THE DELTA QUEEN STEAMBOAT CO.
By: __________________________
Name:
Title:
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ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the
foregoing Supplement, agrees promptly to note on its books the security
interests and assignment granted under such Supplement, and waives any rights or
requirement at any time hereafter to receive a copy of such Supplement in
connection with the registration of any Pledged Collateral in the name of the
Agent or its nominee or the exercise of voting rights by the Agent or its
nominee.
[SUBSIDIARY]
By: [ ], a Managing Member
By: _________________________
Name:
Title:
By: [ ], a Managing Member
By: _________________________
Name:
Title:
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CONSENT
The undersigned hereby acknowledges receipt of a copy of the
foregoing Supplement and consents to the pledge by The Delta Queen Steamboat Co.
of its membership interests in [SUBSIDIARY NAME] to the Agent.
[OTHER MEMBER]
By:___________________________
Name:
Title:
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ANNEX 1
to
SUPPLEMENT
to
LIMITED LIABILITY COMPANY PLEDGE AGREEMENT
Pledged Membership Interests
Percentage of
Membership Interest
[SUBSIDIARY NAME] of the Pledgor
----------------- -------------------
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