ROYAL CARIBBEAN CRUISES LTD.
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(Exact Name of Registrant as Specified in Charter)
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Republic of Liberia
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(State or Other Jurisdiction of Incorporation)
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1-11884
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98-0081645
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(Commission File Number)
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(IRS Employer Identification No.)
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1050 Caribbean Way, Miami, Florida
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33132
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrant’s telephone number, including area code: 305-539-6000
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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ROYAL CARIBBEAN CRUISES LTD.
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Date:
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November 19, 2015
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By:
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/s/ Bradley H. Stein
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Name:
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Bradley H. Stein
Senior Vice President, General Counsel & Secretary
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Title:
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
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SECTION 1.1.
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Defined Terms
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1
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SECTION 1.2.
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Use of Defined Terms
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14
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SECTION 1.3.
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Cross-References
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14
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SECTION 1.4.
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Application of this Agreement to KfW IPEX as an Option A Lender
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14
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SECTION 1.5.
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Accounting and Financial Determinations
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14
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ARTICLE II COMMITMENTS AND BORROWING PROCEDURES
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SECTION 2.1.
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Commitment
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15
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SECTION 2.2.
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Commitment of the Lenders
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15
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SECTION 2.3.
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Voluntary Reduction of Commitments
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16
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SECTION 2.4.
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[Reserved]
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16
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SECTION 2.5.
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Borrowing Procedure
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16
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SECTION 2.6.
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Funding
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17
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ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
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SECTION 3.1.
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Repayments
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18
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SECTION 3.2.
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Prepayment
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18
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SECTION 3.3.
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Interest Provisions
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20
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SECTION 3.3.1.
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Rates
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20
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SECTION 3.3.2.
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Election of Floating Rate
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21
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SECTION 3.3.3.
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Conversion to Floating Rate
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21
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SECTION 3.3.4.
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Post-Maturity Rates
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22
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SECTION 3.3.5.
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Payment Dates
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22
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SECTION 3.3.6.
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Interest Rate Determination; Replacement Reference Banks
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22
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SECTION 3.4.
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Commitment Fee
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23
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SECTION 3.4.1.
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Payment of Commitment Fee
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23
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SECTION 3.5.
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CIRR Guarantee Charge
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23
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SECTION 3.5.1.
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Generally
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23
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SECTION 3.5.2.
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Payment
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24
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SECTION 3.5.3.
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[Reserved]
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24
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SECTION 3.6.
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Other Fees
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24
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SECTION 3.7.
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Temporary Repayment
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24
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SECTION 3.8.
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Limit on Interest Make-Up
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25
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SECTION 3.9.
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Cancellation of CIRR Agreements
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25
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ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS
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SECTION 4.1.
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LIBO Rate Lending Unlawful
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25
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SECTION 4.2.
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Deposits Unavailable
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25
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SECTION 4.3.
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Increased LIBO Rate Loan Costs, etc.
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26
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SECTION 4.4.
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Funding Losses
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28
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SECTION 4.4.1.
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Indemnity
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28
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SECTION 4.5.
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Increased Capital Costs
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30
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SECTION 4.6.
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Taxes
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31
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SECTION 4.7.
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Reserve Costs
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33
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SECTION 4.8.
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Payments, Computations, etc.
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34
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SECTION 4.9.
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Replacement Lenders, etc.
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35
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SECTION 4.10.
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Sharing of Payments
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35
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SECTION 4.10.1.
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Payments to Lenders
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35
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SECTION 4.10.2.
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Redistribution of payments
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36
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SECTION 4.10.3.
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Recovering Lender's rights
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36
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SECTION 4.10.4.
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Reversal of redistribution
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36
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SECTION 4.10.5.
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Exceptions
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36
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SECTION 4.11.
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Set-off
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37
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SECTION 4.12.
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Use of Proceeds
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37
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SECTION 4.13.
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FATCA Deduction
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38
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SECTION 4.14.
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FATCA Information
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38
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SECTION 4.15.
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Resignation of the Facility Agent
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40
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ARTICLE V CONDITIONS TO BORROWING
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SECTION 5.1.
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Advance of the Loan
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40
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SECTION 5.1.1.
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Resolutions, etc.
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40
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SECTION 5.1.2.
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Opinions of Counsel
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41
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SECTION 5.1.3.
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Hermes Insurance Policy
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41
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SECTION 5.1.4.
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Closing Fees, Expenses, etc.
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41
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SECTION 5.1.5.
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Compliance with Warranties, No Default, etc.
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42
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SECTION 5.1.6.
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Loan Request
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42
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SECTION 5.1.7.
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Foreign Exchange Counterparty Confirmations
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42
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SECTION 5.1.8.
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Pledge Agreement
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43
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ARTICLE VI REPRESENTATIONS AND WARRANTIES
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SECTION 6.1.
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Organisation, etc.
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43
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SECTION 6.2.
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Due Authorisation, Non-Contravention, etc.
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43
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SECTION 6.3.
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Government Approval, Regulation, etc.
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44
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SECTION 6.4.
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Compliance with Laws
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44
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SECTION 6.5.
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Validity, etc.
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44
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SECTION 6.6.
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No Default, Event of Default or Prepayment Event
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44
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SECTION 6.7.
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Litigation
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45
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SECTION 6.8.
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The Purchased Vessel
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45
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SECTION 6.9.
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Obligations rank pari passu
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45
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SECTION 6.10.
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Withholding, etc.
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45
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SECTION 6.11.
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No Filing, etc. Required
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45
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SECTION 6.12.
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No Immunity
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46
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SECTION 6.13.
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Investment Company Act
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46
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SECTION 6.14.
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Regulation U
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46
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SECTION 6.15.
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Accuracy of Information
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46
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ARTICLE VII COVENANTS
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SECTION 7.1.
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Affirmative Covenants
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47
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SECTION 7.1.1.
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Financial Information, Reports, Notices, etc.
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47
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SECTION 7.1.2.
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Approvals and Other Consents
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48
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SECTION 7.1.3.
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Compliance with Laws, etc.
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48
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SECTION 7.1.4.
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The Purchased Vessel
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49
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SECTION 7.1.5.
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Insurance
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49
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SECTION 7.1.6.
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Books and Records
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50
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SECTION 7.1.7.
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Hermes Insurance Policy/Federal Republic of Germany Requirement
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50
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SECTION 7.1.8.
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Notice of written amendments to Construction Contract
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50
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SECTION 7.2.
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Negative Covenants
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51
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SECTION 7.2.1.
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Business Activities
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51
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SECTION 7.2.2.
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Indebtedness
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51
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SECTION 7.2.3.
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Liens
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51
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SECTION 7.2.4.
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Financial Condition
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54
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SECTION 7.2.5.
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Investments
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54
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SECTION 7.2.6.
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Consolidation, Merger, etc.
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54
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SECTION 7.2.7.
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Asset Dispositions, etc.
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55
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SECTION 7.2.8.
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Construction Contract
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55
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SECTION 7.3.
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Limitation of in respect of Certain Representations, Warranties and Covenants
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56
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ARTICLE VIII EVENTS OF DEFAULT
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SECTION 8.1.
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Listing of Events of Default
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56
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SECTION 8.1.1.
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Non-Payment of Obligations
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56
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SECTION 8.1.2.
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Breach of Warranty
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56
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SECTION 8.1.3.
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Non-Performance of Certain Covenants and Obligations
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56
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SECTION 8.1.4.
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Default on Other Indebtedness
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57
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SECTION 8.1.5.
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Bankruptcy, Insolvency, etc.
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57
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SECTION 8.2.
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Action if Bankruptcy
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58
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SECTION 8.3.
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Action if Other Event of Default
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58
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ARTICLE IX PREPAYMENT EVENTS
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SECTION 9.1.
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Listing of Prepayment Events
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59
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SECTION 9.1.1.
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Change of Control
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59
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SECTION 9.1.2.
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Unenforceability
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59
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SECTION 9.1.3.
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Approvals
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59
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SECTION 9.1.4.
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Non-Performance of Certain Covenants and Obligations
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59
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SECTION 9.1.5.
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Judgments
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59
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SECTION 9.1.6.
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Condemnation, etc.
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60
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SECTION 9.1.7.
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Arrest
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60
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SECTION 9.1.8.
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Sale/Disposal of the Purchased Vessel
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60
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SECTION 9.1.9.
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Delayed Delivery of the Purchased Vessel
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60
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SECTION 9.1.10.
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Termination of the Construction Contract
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60
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SECTION 9.1.11.
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Termination, etc. of the Hermes Insurance Policy
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60
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SECTION 9.2.
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Mandatory Prepayment
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61
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ARTICLE X THE FACILITY AGENT AND THE HERMES AGENT
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SECTION 10.1.
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Actions
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61
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SECTION 10.2.
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Indemnity
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62
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SECTION 10.3.
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Funding Reliance, etc.
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62
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SECTION 10.4.
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Exculpation
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62
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SECTION 10.5.
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Successor
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63
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SECTION 10.6.
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Loans by the Facility Agent
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64
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SECTION 10.7.
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Credit Decisions
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64
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SECTION 10.8.
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Copies, etc.
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64
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SECTION 10.9.
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The Agents' Rights
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65
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SECTION 10.10.
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The Facility Agent's Duties
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65
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SECTION 10.11.
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Employment of Agents
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65
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SECTION 10.12.
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Distribution of Payments
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66
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SECTION 10.13.
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Reimbursement
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66
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SECTION 10.14.
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Instructions
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66
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SECTION 10.15.
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Payments
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66
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SECTION 10.16.
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"Know your customer" Checks
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67
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SECTION 10.17.
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No Fiduciary Relationship
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67
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ARTICLE XI MISCELLANEOUS PROVISIONS
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SECTION 11.1.
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Waivers, Amendments, etc.
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67
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SECTION 11.2.
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Notices
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68
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SECTION 11.3.
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Payment of Costs and Expenses
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69
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SECTION 11.4.
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Indemnification
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70
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SECTION 11.5.
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Survival
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71
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SECTION 11.6.
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Severability; Independence of Obligations
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71
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SECTION 11.7.
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Headings
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72
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SECTION 11.8.
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Execution in Counterparts
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72
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SECTION 11.9.
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Third Party Rights
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72
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SECTION 11.10.
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Successors and Assigns
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72
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SECTION 11.11.
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Sale and Transfer of the Loan; Participations in the Loan
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72
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SECTION 11.11.1.
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Assignments
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72
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SECTION 11.11.2.
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Participations
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75
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SECTION 11.11.3.
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Register
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76
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SECTION 11.12.
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Other Transactions
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76
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SECTION 11.13.
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Hermes Insurance Policy
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76
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SECTION 11.13.1.
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Terms of Hermes Insurance Policy
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76
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SECTION 11.13.2.
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Obligations of the Borrower
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77
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SECTION 11.13.3.
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Obligations of the Hermes Agent and the Lenders
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78
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SECTION 11.14.
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Law and Jurisdiction
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78
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SECTION 11.14.1.
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Governing Law
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78
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SECTION 11.14.2.
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Jurisdiction
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79
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SECTION 11.14.3.
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Alternative Jurisdiction
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79
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SECTION 11.14.4.
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Service of Process
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79
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SECTION 11.15.
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Confidentiality
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79
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SECTION 11.16.
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CIRR requirements
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80
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SECTION 11.17.
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Mitigation
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81
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EXHIBITS
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Exhibit A
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-
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Form of Loan Request
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Exhibit B-1
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-
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Form of Opinion of Liberian Counsel to Borrower
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Exhibit B-2
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-
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Form of Opinion of English Counsel to Facility Agent and Lenders
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Exhibit B-3
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-
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Form of Opinion of German Counsel to Facility Agent and Lenders
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Exhibit B-4
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-
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Form of Opinion of US Tax Counsel to Lenders
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Exhibit C
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-
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Form of Lender Assignment Agreement
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Exhibit D
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-
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Form of Option A Refinancing Agreement
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Exhibit E
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-
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Form of Pledge Agreement
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(A)
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The Borrower and Meyer Werft GmbH & Co. KG (the "Builder") have on June 12, 2015 entered into a Contract for the Construction and Sale of Hull No. S-700 (as amended from time to time, the "Construction Contract") pursuant to which the Builder has agreed to design, construct, equip, complete, sell and deliver the passenger cruise vessel bearing Builder's hull number S-700 (the "Purchased Vessel");
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(B)
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The Lenders have agreed to make available to the Borrower, upon the terms and conditions contained herein, a US dollar loan facility calculated on the amount (the "Maximum Loan Amount") equal to (x) eighty per cent (80%) of the Contract Price (as defined below) of the Purchased Vessel (as defined below), as adjusted from time to time in accordance with the Construction Contract to reflect, among other adjustments, change orders, but which Contract Price shall not exceed for this purpose EUR 931,000,000 (the "Contract Price Proceeds"), plus (y) 100% of the Hermes Fee (as defined below) (the "Hermes Fee Proceeds") and being made available in the US Dollar Equivalent of that Maximum Loan Amount; and
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(C)
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The Contract Price Proceeds will be provided to the Borrower two (2) Business Days prior to the delivery of the Purchased Vessel for the purpose of paying a portion of the Contract Price in connection with the Borrower's purchase of the Purchased Vessel. The Hermes Fee Proceeds will be provided on the Disbursement Date and paid as set forth in Section 2.5(c) and (d).
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(a)
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net cash from operating activities (determined in accordance with GAAP) for such period, as shown in the Borrower's consolidated statement of cash flow for such period, to
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(b)
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the sum of:
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(a)
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any Interest Period which would otherwise end on a day which is not a Business Day shall end on the next Business Day to occur, except if such Business Day does not fall in the same calendar month, the Interest Period will end on the last Business Day in that calendar month, the interest amount due in respect of the Interest Period in question and in respect of the next following Interest Period being adjusted accordingly; and
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(b)
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if any Interest Period is altered by the application of a) above, the subsequent Interest Period shall end on the day on which it would have ended if the preceding Interest Period had not been so altered.
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(a)
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any loan or advance made by such Person to any other Person (excluding commission, travel, expense and similar advances to officers and employees made in the ordinary course of business); and
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(b)
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any ownership or similar interest held by such Person in any other Person.
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(a)
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subject to Section 3.3.6, if no such rate appears on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any such replacement page) at the relevant time, the LIBO Rate shall be the rate per annum certified by the Facility Agent to be the average of the rates quoted by the Reference Banks as the rate at which each of the Reference Banks was (or would have been) offered deposits of Dollars by prime banks in the London interbank market in an amount approximately equal to the amount of the Loan and for a period of six months (or for such other period as shall be agreed by the Borrower and the Facility Agent);
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(b)
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for the purposes of determining the post-maturity rate of interest under Section 3.3.4, the LIBO Rate shall be determined by reference to deposits on an overnight or call basis or for such other period or periods as the Facility Agent may determine after consultation with the Lenders, which period shall be no longer than one month unless the Borrower otherwise agrees; and
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(c)
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if the LIBO Rate determined in accordance with the foregoing provisions of this definition is less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
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(a)
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all cash on hand of the Borrower and its Subsidiaries; plus
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(b)
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all Cash Equivalents.
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(a)
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borrowed money (whether by loan or issuance and sale of debt securities), including drawings under this Agreement and any revolving credit facilities, and
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(b)
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the issuance and sale of equity securities.
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(a)
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for all EUR amounts payable in respect of the Contract Price (excluding the portion thereof comprising the Buyer's Allowance), the total of such EUR amounts converted to a corresponding Dollar amount as determined using the weighted average rate of exchange that the Borrower has agreed, either in the spot or forward currency markets, to pay its counterparties for the purchase of the relevant amounts of EUR with Dollars for the payment of the instalments of the Contract Price and including in such weighted average the spot rates for any EUR amounts due that have not been hedged by the Borrower;
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(b)
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for all EUR amounts payable in respect of the Buyer's Allowance, the total of such EUR amounts converted to a corresponding Dollar amount as determined using the USD-to-EUR rate used by the Borrower to convert the relevant USD amount of the amount of the Buyer's Allowance into EUR for the purpose of the Builder invoicing the same to the Borrower in EUR in accordance with the Construction Contract; and
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(c)
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for the calculation and payment of the Hermes Fee in Dollars, the amount thereof in EUR converted to a corresponding Dollar amount as determined by Hermes on the basis of the latest rate for the purchase of EUR with Dollars to be published by the German Federal Ministry of Finance prior to the time that Hermes issues its invoice for the Hermes Fee.
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(a)
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Each Lender will make its portion of the Loan available to the Borrower in accordance with Section 2.5 two (2) Business Days prior to the delivery of the Purchased Vessel to the Borrower under the Construction Contract. The commitment of each Lender described in this Section 2.2 (herein referred to as its "Commitment") shall be the commitment of such Lender to make available to the Borrower its portion of the Loan hereunder expressed as the initial amount set forth opposite such Lender's name on its signature page attached hereto or, in the case of any Lender that becomes a Lender pursuant to an assignment pursuant to Section 11.11.1, the amount set forth as such Lender's Commitment in the related Lender Assignment Agreement, in each case as such amount may be reduced from time to time pursuant to Section 2.3 or reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.11.1.
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(b)
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Each Lender's Commitment shall terminate on the earlier of (i) the Commitment Termination Date if the Purchased Vessel is not delivered to the Borrower prior to such date and (ii) the delivery to the Borrower of the Purchased Vessel.
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(c)
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If any Lender shall default in its obligations under Section 2.1, the Facility Agent shall, at the request of the Borrower, use reasonable efforts to assist the Borrower in finding a bank or financial institution acceptable to the Borrower to replace such Lender.
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(a)
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The Borrower may at any time terminate, or from time to time partially reduce, the Commitments upon written notice to the Facility Agent setting forth the amount of the reduction in the Commitments (the "Reduction Notice"). The requested reduction shall be effective two Business Days after the date of delivery of the Reduction Notice and shall be applied to the respective Commitments of the Lenders pro rata according to the amounts of their respective Commitments immediately prior to giving effect to such reduction.
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(b)
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If the Reduction Notice is delivered by the Borrower at least 63 days prior to the actual Disbursement Date, the Borrower shall not incur any liability to make any payments pursuant to Section 4.4 or to incur any other indemnity or compensation obligation. If the Reduction Notice is delivered by the Borrower less than 63 days prior to the actual Disbursement Date, the Borrower shall either (i) pay such compensation to the relevant Lender as required by, and in accordance with, Section 4.4 to the extent such Lender incurs a loss as set out in Section 4.4 or (ii) extend the Disbursement Date to a date that falls at least 63 days after the Reduction Notice was first delivered by the Borrower. In the event that the Borrower elects the option under the foregoing clause (ii), the Borrower shall deliver a Loan Request to the Facility Agent in accordance with Section 2.5(a), and the proposed Disbursement Date set out in such Loan Request shall be a date that falls at least 63 days after the Reduction Notice was first delivered by the Borrower.
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(a)
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The Borrower shall deliver a Loan Request and the documents required to be delivered pursuant to Section 5.1.1(a) to the Facility Agent on or before 11:00 a.m., London time, not less than two (2) Business Days in advance of the date that is two (2) Business Days prior to the anticipated Delivery Date. The aggregate amount of the Loan to be advanced shall not exceed the US Dollar Maximum Loan Amount.
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(b)
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The Facility Agent shall promptly notify each Lender of any Loan Request by forwarding a copy thereof to each Lender, together with its attachments. On the terms and subject to the conditions of this Agreement, the Loan shall be made on the Business Day specified in such Loan Request. On or before 2:00 p.m., London time, on the Business Day specified in such Loan Request, each Lender shall, without any set-off or counterclaim, deposit with the Facility Agent same day Dollar funds in an amount equal to such Lender's Percentage of the requested Loan. Such deposit will be made to an account which the Facility Agent shall specify from time to time by notice to the Lenders. To the extent funds are so received from the Lenders, the Facility Agent shall, without any set-off or counterclaim, make such funds available to the Borrower on the Business Day specified in the Loan Request by wire transfer of same day funds to the account or accounts the Borrower shall have specified in its Loan Request.
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(c)
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The Borrower shall, upon receipt of the Dollar funds into the account referred to in Section 2.5(b) above, (i) complete the purchase of EUR with its counterparties or otherwise as set out in the Loan Request (by authorising and instructing the Facility Agent to remit the necessary Dollar funds to the said counterparties) and shall procure the payment of all EUR proceeds of such transactions to the EUR Pledged Account no later than the Business Day immediately following the Business Day specified in the Loan Request and (ii) to the extent of any such Dollar funds as shall not be used to purchase EUR, shall procure (by authorising and instructing the Facility Agent accordingly) the payment of such Dollar funds to the Dollar Pledged Account on the Disbursement Date.
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(d)
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Upon the date of delivery to the Borrower of the Purchased Vessel, the Facility Agent shall direct that moneys standing to the credit of the Pledged Accounts shall, in the manner set out in the Loan Request and in accordance with the requirements and provisions of the Pledge Agreement, be disbursed as follows:
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i.
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in EUR, to the account of the Builder, as designated by the Builder and identified by the Borrower in the Loan Request, to the extent necessary to meet the final instalment of the Contract Price (including any portion thereof attributable to the Buyer's Allowance); and
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ii.
|
in Dollars, (y) to Hermes in payment of the Second Fee; and (z) to the account of the Borrower, as designated by the Borrower and identified by the Borrower in the Loan Request, in reimbursement of the First Fee and in respect of any additional amounts standing to the Dollar Pledged Account as of the date of such disbursement,
|
(a)
|
Subject to Section 3.1(b), the Borrower shall repay the Loan in 24 equal semi-annual instalments, with the first instalment to fall due on the date falling six (6) months after the Disbursement Date and the final instalment to fall due on the date of Final Maturity.
|
(b)
|
If, on the date of delivery to the Borrower of the Purchased Vessel, the outstanding principal amount of the Loan exceeds the US Dollar Maximum Loan Amount (as a result of a reduction in the Contract Price after the Disbursement Date and before the delivery of the Purchased Vessel), the Borrower shall repay the Loan in an amount equal to such excess within two (2) Business Days after the date of delivery to the Borrower of the Purchased Vessel. Any such partial prepayment shall be applied pro rata in satisfaction of the remaining scheduled repayment instalments of the Loan.
|
(c)
|
No amount repaid by the Borrower pursuant to this Section 3.1 may be re-borrowed under the terms of this Agreement.
|
(a)
|
The Borrower:
|
i.
|
may, from time to time on any Business Day, make a voluntary prepayment, in whole or in part, of the outstanding principal amount of the Loan; provided that:
|
a.
|
all such voluntary prepayments shall require (x) for prepayments on or after the Disbursement Date made prior to delivery to the Borrower of the Purchased Vessel in respect of the advance made on the Disbursement Date, at least two (2) Business Days' prior written notice to the Facility Agent, and (y) for all other prepayments, at least 30 calendar days' prior written notice, if all or any portion of the Loan is a Fixed Rate Loan, and at least five (5) Business Days'
|
b.
|
all such voluntary partial prepayments shall be in an aggregate minimum amount of $10,000,000 and a multiple of $1,000,000 (or in the remaining amount of the Loan) and shall be applied in inverse order of maturity or ratably among all remaining instalments, as the Borrower shall designate to the Facility Agent, in satisfaction of the remaining repayment instalments of the Loan; and
|
ii.
|
shall, immediately upon any acceleration of the repayment of the instalments of the Loan pursuant to Section 8.2 or 8.3 or the mandatory prepayment of the Loan pursuant to Section 9.2, repay the Loan.
|
(b)
|
If, by reason of a Change in Law, it becomes unlawful under any applicable law (i) for a Lender to be subject to a commitment to make available to the Borrower such Lender's portion of the Loan hereunder as provided in Section 2.2, (ii) for a Lender to make or hold its portion of the Loan in its Lending Office, (iii) for a Lender to receive a payment under this Agreement or any other Loan Document or (iv) for a Lender to comply with any other material provision of, or to perform its obligations as contemplated by, this Agreement or any other Loan Document, the Lender affected by such Change in Law may give written notice (the "Illegality Notice") to the Borrower and the Facility Agent of such Change in Law, including reasonable details of the relevant Change of Law. Any Illegality Notice must be given by a Lender no later than 120 days after such Lender first obtains actual knowledge or written notice of the relevant Change in Law.
|
(c)
|
If an affected Lender delivers an Illegality Notice prior to the Disbursement Date, then, subject to Section 11.17, (1) whilst the arrangements contemplated by the following clause (2) have not yet been completed and the Commitment of such Lender has not been formally cancelled, such Lender shall not be obliged to fund its Commitment and (2) the Borrower shall be entitled at any time within 50 days after receipt of such Illegality Notice to replace such Lender with one or more financial institutions (I) reasonably acceptable to the Facility Agent, (II) meeting the criteria set out in Section 2.2 of the Terms and Conditions, (III) acceptable to Hermes and (IV) in the case of a replacement of an Option A Lender, reasonably acceptable to KfW; provided that any such assignment shall be either (x) in the case of a single assignment, an assignment of all of the rights and obligations of the assigning Lender under this Agreement or (y) in the case of more than one assignment, an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that collectively cover all of the rights and obligations of the assigning Lender under this Agreement. If, at the end of such 50-day period, the Borrower has not so replaced such affected Lender as
|
(d)
|
If an affected Lender delivers an Illegality Notice on or following the Disbursement Date, then the Borrower shall have the right, but not the obligation, exercisable at any time within 50 days after receipt of such Illegality Notice (the "Option Period"), either (1) to prepay the portion of the Loan held by such Lender in full on or before the expiry of the Option Period, together with all unpaid interest and fees thereon accrued to but excluding the date of such prepayment, or (2) to replace such Lender on or before the expiry of the Option Period with one or more financial institutions (I) reasonably acceptable to the Facility Agent, (II) meeting the criteria set out in Section 2.2 of the Terms and Conditions, (III) acceptable to Hermes and (IV) in the case of a replacement of an Option A Lender, reasonably acceptable to KfW; provided that (x) in the case of a single assignment, any such assignment shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or, in the case of more than one assignment, an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that collectively cover all of the rights and obligations of the assigning Lender under this Agreement and (y) no Lender shall be obligated to make any such assignment as a result of an election by the Borrower pursuant to this Section 3.2(d) unless and until such Lender shall have received one or more payments from one or more Assignee Lenders and/or the Borrower in an aggregate amount at least equal to the portion of the Loan held by such Lender, together with all unpaid interest and fees thereon accrued to but excluding the date of such assignment (and all other amounts then owing to such Lender under this Agreement).
|
(e)
|
Each prepayment of the Loan made pursuant to this Section 3 shall be without premium or penalty, except as may be required by Section 4.4. No amounts prepaid by the Borrower may be re-borrowed under the terms of this Agreement except as provided in Section 3.7 and the last paragraph of Section 9.1 (which follows Section 9.1.11).
|
(a)
|
At any time prior to the Disbursement Date, the Borrower may elect to pay interest on the Loan at the Floating Rate by written notice (the "Floating Rate Election Notice") to the Facility Agent. If the Floating Rate Election Notice is delivered by the Borrower at least 63 days prior to the actual Disbursement Date, the Borrower shall not incur any liability to make any payments pursuant to Section 4.4 or to incur any other indemnity or compensation obligation. If the Floating Rate Election Notice is delivered by the Borrower less than 63 days prior to the actual Disbursement Date, the Borrower shall either (i) pay such compensation to the relevant Lender as required by, and in accordance with, Section 4.4 to the extent such Lender incurs a loss as set out in Section 4.4 or (ii) extend the Disbursement Date to a date that falls at least 63 days after the Floating Rate Election Notice was first delivered by the Borrower. In the event that the Borrower elects the option under the foregoing clause (ii), the Borrower shall deliver a Loan Request to the Facility Agent in accordance with Section 2.5(a), and the proposed Disbursement Date set out in such Loan Request shall be a date that falls at least 63 days after the Floating Rate Election Notice was first delivered by the Borrower.
|
(b)
|
If the Borrower has not elected the Floating Rate prior to the Disbursement Date as permitted by Section 3.3.2(a), the Borrower may elect, by written notice to the Facility Agent no later than 2:00 p.m. Frankfurt time 32 days prior to the end of an Interest Period and subject to Section 4.4, to pay interest on the Loan for the remainder of the term of the Loan at the Floating Rate, with effect from the end of that Interest Period.
|
(c)
|
Any election made under any of Section 3.3.2(a) or Section 3.3.2(b) may only be made one time during the term of the Loan and shall be irrevocable.
|
(a)
|
each Repayment Date;
|
(b)
|
the date of any prepayment, in whole or in part, of principal outstanding on the Loan (but only on the principal so prepaid);
|
(c)
|
on that portion of the Loan the repayment of which is accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such acceleration; and
|
(d)
|
in the case of any interest on any principal, interest or other amount owing under this Agreement or any other Loan Document that is overdue, from time to time on demand of the Facility Agent until such overdue amount is paid in full.
|
(a)
|
Dollar deposits in the relevant amount and for the relevant Interest Period are not available to each Reference Bank in its relevant market, or
|
(b)
|
by reason of circumstances affecting the Reference Banks' relevant markets, adequate means do not exist for ascertaining the interest rate applicable hereunder to LIBO Rate loans for the relevant Interest Period, or
|
(c)
|
the cost to Option B Lenders that in the aggregate hold more than 50% of the aggregate outstanding principal amount of the Loan then held by Option B Lenders, if any Lender shall have entered into an Option B Interest Make-Up Agreement, of obtaining matching deposits in the relevant interbank market for the relevant Interest Period would be in excess of the LIBO Rate (provided that no Option B Lender may exercise its rights under this Section 4.2(c) for amounts up to the difference between such Option B Lender's cost of obtaining matching deposits on the date such Option B Lender becomes a Lender hereunder less the LIBO Rate on such date),
|
(a)
|
subject any Lender to any taxes, levies, duties, charges, fees, deductions or withholdings of any nature with respect to its portion of the Loan or any part thereof imposed, levied, collected, withheld or assessed by any jurisdiction or any political subdivision or taxing authority thereof (other than (i) taxes as to which such Lender is indemnified under Section 4.6 and (ii) taxes excluded from the indemnity set forth in Section 4.6); or
|
(b)
|
change the basis of taxation to any Lender (other than a change in taxation on the overall net income of any Lender) of payments of principal or interest or any other payment due or to become due pursuant to this Agreement; or
|
(c)
|
impose, modify or deem applicable any reserve or capital adequacy requirements (other than the increased capital costs described in Section 4.5 and the reserve costs described in Section 4.7) or other banking or monetary controls or requirements which affect the manner in which a Lender shall allocate its capital resources to its obligations hereunder or require the making of any special deposits against or in respect of any assets or liabilities of, deposits with or for the account of, or loans by, any Lender (provided that such Lender shall, unless prohibited by law, allocate its capital resources to its obligations hereunder in a manner which is consistent with its present treatment of the allocation of its capital resources); or
|
(d)
|
impose on any Lender any other condition affecting its portion of the Loan or any part thereof,
|
(a)
|
if at the time interest is calculated at the Floating Rate on such Lender's portion of the Loan, any conversion or repayment or prepayment or acceleration of the principal amount of such Lender's portion of the Loan on a date other than the scheduled last day of an Interest Period or otherwise scheduled date for repayment or payment (in each case, including payments made in accordance with Section 3.1(b), but excluding any prepayment made following an election by the Borrower to effect a prepayment pursuant to Section 3.2(d), or any repayment pursuant to Section 9.1.12, by reason of a Non-Borrower Related Change in Law);
|
(b)
|
if at the time interest is calculated at the Fixed Rate on such Lender's portion of the Loan, any repayment or prepayment or acceleration of the principal amount of such Lender's portion of the Loan, other than any repayment made on the date scheduled for such repayment (in each case, excluding any prepayment made following an election by the Borrower to effect a prepayment pursuant to Section 3.2(d), or any repayment pursuant to Section 9.1.12, by reason of a Non-Borrower Related Change in Law);
|
(c)
|
without prejudice to the rights of the Borrower to elect an option under Section 3.3.2(a), an election by the Borrower of the Floating Rate in accordance with Section 3.3.2(a) (where the Disbursement Date is a date that falls less than 63
|
(d)
|
a reduction or termination of the Commitments by the Borrower pursuant to Section 2.3(b)(i);
|
(e)
|
the Loan not being made in accordance with the Loan Request therefor due to the fault of the Borrower or as a result of any of the conditions precedent set forth in Article V not being satisfied; or
|
(f)
|
any prepayment of the Loan by the Borrower pursuant to Section 3.7;
|
a.
|
if at that time interest is calculated at the Floating Rate on such Lender's portion of the Loan, pay directly to the Facility Agent for the account of such Lender an amount (the "Floating Rate Indemnity Amount") equal to the amount, if any, by which:
|
(i)
|
interest calculated at the Floating Rate which such Lender would have received on its share of the amount of the Loan subject to such Funding Losses Event for the period from the date of receipt of any part of its share in the Loan to the last day of the applicable Interest Period,
|
(ii)
|
the amount which such Lender would be able to obtain by placing an amount equal to the amount received by it on deposit with a leading bank in the appropriate interbank market for a period starting on the Business Day following receipt and ending on the last day of the applicable Interest Period; or
|
b.
|
if at that time interest is calculated at the Fixed Rate on such Lender's portion of the Loan, pay to the Facility Agent the sum of:
|
(A)
|
an amount equal to the amount, if any, by which:
|
(i)
|
interest calculated at the rate per annum equal to (a) the CIRR which such Lender would have received on its share of the amount of the Loan subject to such Funding Losses Event minus (b) the administrative margin of 0.20%, for the period from the date of receipt of any part of its share of the Loan to the final scheduled date for the repayment of Loan in full pursuant to Section 3.1,
|
(ii)
|
the amount by which such Lender would be able to obtain by placing for such remaining period an equal amount to the amount received by it on deposit and receiving interest equal to the money market rate then applicable to Dollars on the Reuters page "ICAP1" (the "Reinvestment Rate"),
|
(B)
|
an amount equal to the Floating Rate Indemnity Amount (and assuming for the purpose of this calculation that the interest on the Loan is calculated at the Floating Rate and not the Fixed Rate).
|
(a)
|
pay directly to the relevant authority the full amount required to be so withheld or deducted;
|
(b)
|
promptly forward to the Facility Agent an official receipt or other documentation satisfactory to the Facility Agent evidencing such payment to such authority; and
|
(c)
|
pay to the Facility Agent for the account of the Lenders such additional amount or amounts as is necessary to ensure that the net amount actually received by each Lender will equal the full amount such Lender would have received had no such withholding or deduction been required.
|
(a)
|
the principal amount of the Loan outstanding on such day; and
|
(b)
|
the remainder of (x) a fraction the numerator of which is the rate (expressed as a decimal) at which interest accrues on the Loan for such Interest Period as provided in this Agreement (less, if applicable, the Floating Rate Margin) and the denominator of which is one minus any increase after the Effective Date in the effective rate (expressed as a decimal) at which such reserve requirements are imposed on such Lender minus (y) such numerator; and
|
(c)
|
1/360.
|
(a)
|
Unless otherwise expressly provided in this Agreement or any other Loan Document, all payments by the Borrower in respect of amounts of principal, interest and fees or any other applicable amounts owing to the Lenders hereunder shall be made by the Borrower to the Facility Agent for the account of the Lenders entitled to receive such payments and ratably in accordance with the respective amounts then due and payable to the Lenders. All such payments required to be made to the Facility Agent shall be made, without set-off, deduction or counterclaim, not later than 11:00 a.m., New York time, on the date due, in same day or immediately available funds through the New York Clearing House Interbank Payments System (or such other funds as may be customary for the settlement of international banking transactions in Dollars), to such account as the Facility Agent shall specify from time to time by notice to the Borrower. Funds received after that time shall be deemed to have been received by the Lenders on the next succeeding Business Day.
|
(b)
|
i.
|
Each Option A Lender hereby instructs the Facility Agent to remit all payments of interest made with respect to any portion of the Loan held by such Option A Lender to KfW (A) less (x) the Fixed Rate Margin and (y) the CIRR administrative fee of 0.20% but plus (z) an agreed KfW margin, if interest on the portion of the Loan made by that Lender is then calculated at the Fixed Rate, or (B) less (x) the Floating Rate Margin but plus (y) an agreed KfW margin, if interest on that portion of the Loan is then calculated at the Floating Rate.
|
ii.
|
Each Option B Lender hereby instructs the Facility Agent, with respect to any portion of the Loan held by such Option B Lender, to pay directly to such Option B Lender interest thereon at the Fixed Rate or the Floating Rate (whichever is applicable), on the basis that, if interest on such portion of the Loan is then calculated at the Fixed Rate, such Option B Lender will, where amounts are payable to the KfW by that Option B Lender under the CIRR Agreement, account directly to the KfW on behalf of the Federal Republic of Germany for any such amounts payable by that Lender under the CIRR Agreement to which such Lender is a party.
|
(c)
|
The Facility Agent shall promptly (but in any event on the same Business Day that the same are received or, as contemplated in clause (a) of this Section, deemed received) remit in same day funds to each Lender its share, if any, of such payments received by the Facility Agent for the account of such Lender without any set-off, deduction or counterclaim. All interest and fees shall be computed on the basis of the actual number of days (including the first day but excluding the last day) occurring during the period for which such interest or fee is payable over a year comprised of 360 days. Whenever any payment to be made shall otherwise be due on a day which is not a Business Day, such payment shall (except as otherwise
|
(a)
|
the Recovering Lender shall, within three (3) Business Days, notify details of the receipt or recovery to the Facility Agent;
|
(b)
|
the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Lender would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with the said Section 4.8, without taking account of any taxes which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
|
(c)
|
the Recovering Lender shall, within three (3) Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Lender as its share of any payment to be made, in accordance with any applicable provisions of this Agreement.
|
(a)
|
each Sharing Lender shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Lender an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Lender for its proportion of any interest on the Sharing Payment which that Recovering Lender is required to pay) (the "Redistributed Amount"); and
|
(b)
|
solely as between the Borrower and each relevant Sharing Lender, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by the Borrower.
|
(a)
|
This Section 4.10 shall not apply to the extent that the Recovering Lender would not, after making any payment pursuant to this Section 4.10, have a valid and enforceable claim against the Borrower.
|
(b)
|
A Recovering Lender is not obliged to share with any other Lender any amount which the Recovering Lender has received or recovered as a result of taking legal or arbitration proceedings, if:
|
i.
|
it notified the other Lender of the legal or arbitration proceedings; and
|
ii.
|
the other Lender had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
|
(e)
|
If the Borrower becomes a US Tax Obligor or the Facility Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:
|
|
(i)
|
where the Borrower is a US Tax Obligor and the relevant Lender is KfW IPEX, the date of this Agreement;
|
|
(ii)
|
where the Borrower is a US Tax Obligor on a date an assignment or transfer is made pursuant to Section 11.11.1 and the relevant Lender is an Assignee Lender that becomes a Lender in accordance with Section 11.11.1, the date on which such Assignee Lender becomes a Lender;
|
|
(iii)
|
where the Borrower is not a US Tax Obligor, the date of a request from the Facility Agent,
|
|
(A)
|
a withholding certificate on Form W-8 (or any successor form), Form W-9 (or any successor form) or any other relevant form; or
|
|
(B)
|
any withholding statement or other document, authorisation or waiver as the Facility Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.
|
|
(f)
|
The Facility Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the Borrower.
|
|
(g)
|
If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Facility Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Facility Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Facility Agent). The Facility Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the Borrower.
|
|
(h)
|
The Facility Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Facility Agent shall not be liable for any action taken by it under or in connection with paragraph (e), (f) or (g) above.
|
(a)
|
a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorised to act with respect to this Agreement and each other Loan Document and as to the truth and completeness of the attached:
|
i.
|
resolutions of its Board of Directors then in full force and effect authorising the execution, delivery and performance of this Agreement and each other Loan Document, and
|
ii.
|
Organic Documents of the Borrower,
|
(b)
|
a Certificate of Good Standing issued by the relevant Liberian authorities in respect of the Borrower.
|
(a)
|
Watson, Farley & Williams LLP, counsel to the Borrower, as to Liberian Law, covering the matters set forth in Exhibit B-1 hereto;
|
(b)
|
Norton Rose Fulbright LLP, counsel to the Facility Agent and the Lenders, covering the matters set forth in Exhibit B-2 hereto;
|
(c)
|
Norton Rose Fulbright LLP, counsel to the Facility Agent and the Lenders as to German law, an opinion addressed to the Facility Agent and the Lenders covering the matters set forth in Exhibit B-3 hereto;
|
(d)
|
Clifford Chance US LLP, United States tax counsel to the Facility Agent for the benefit of Lenders, covering the matters set forth in Exhibit B-4 hereto; and
|
(e)
|
if requested by a Lender at least 90 days prior to the expected Disbursement Date in order to comply with Article 194 of the Regulation (EU) No 575/2013 (CRR), a single legal opinion (for the benefit of all the Lenders notwithstanding that not all the Lenders have requested the same) on matters of German law related to the validity and enforceability of the Hermes Insurance Policy,
|
(a)
|
The Facility Agent or the Hermes Agent shall have received the Hermes Insurance Policy duly issued; and
|
(b)
|
Hermes shall not have, prior to the advance of the Loan, delivered to the Facility Agent or the Hermes Agent any notice that the Federal Republic of Germany has determined that the Loan is excluded from cover under the Hermes Insurance Policy.
|
(a)
|
the representations and warranties set forth in Article VI (excluding, however, those set forth in Section 6.10) shall be true and correct in all material respects except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct, with the same effect as if then made; and
|
(b)
|
no Default and no Prepayment Event and no event which (with notice or lapse of time or both) would become a Prepayment Event shall have then occurred and be continuing.
|
(a)
|
certified as true (by the Builder) copies of the reimbursement request and supporting documents received by the Builder from the Borrower pursuant to Article XVII.1(b) of the Construction Contract in relation to the incurred Buyer's Allowance;
|
(b)
|
a copy of the final invoice from the Builder showing the amount of the Contract Price (including the Buyer's Allowance) and the portion thereof payable to the Builder on the Delivery Date under the Construction Contract; and
|
(c)
|
appropriate evidence of all payments made by the Borrower to the Builder on or prior to the Disbursement Date under the Construction Contract in respect of the Contract Price (including, without limitation, the twenty per cent (20%) equity payment thereunder).
|
(a)
|
contravene the Borrower's Organic Documents;
|
(b)
|
contravene any law or governmental regulation of any Applicable Jurisdiction except as would not reasonably be expected to result in a Material Adverse Effect;
|
(c)
|
contravene any court decree or order binding on the Borrower or any of its property except as would not reasonably be expected to result in a Material Adverse Effect;
|
(d)
|
contravene any contractual restriction binding on the Borrower or any of its property except as would not reasonably be expected to result in a Material Adverse Effect; or
|
(e)
|
result in, or require the creation or imposition of, any Lien on any of the Borrower's properties except: (i) as would not reasonably be expected to result in a Material Adverse Effect or (ii) or Liens created under the Loan Documents.
|
(a)
|
legally and beneficially owned by the Borrower or one of the Borrower's wholly owned Subsidiaries,
|
(b)
|
registered in the name of the Borrower or one of the Borrower's wholly owned Subsidiaries under the Bahamian or Maltese flag or such other flag as the parties may mutually agree,
|
(c)
|
classed as required by Section 7.1.4(b),
|
(d)
|
free of all recorded Liens, other than Liens permitted by Section 7.2.3,
|
(e)
|
insured against loss or damage in compliance with Section 7.1.5, and
|
(f)
|
exclusively operated by or chartered to the Borrower or one of the Borrower's wholly owned Subsidiaries.
|
(a)
|
as soon as available and in any event within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, a copy of the Borrower's report on Form 10-Q (or any successor form) as filed by the Borrower with the SEC for such Fiscal Quarter, containing unaudited consolidated financial statements of the Borrower for such Fiscal Quarter (including a balance sheet and profit and loss statement) prepared in accordance with GAAP, subject to normal year-end audit adjustments;
|
(b)
|
as soon as available and in any event within 120 days after the end of each Fiscal Year of the Borrower, a copy of the Borrower's annual report on Form 10-K (or any successor form) as filed by the Borrower with the SEC for such Fiscal Year, containing audited consolidated financial statements of the Borrower for such Fiscal Year prepared in accordance with GAAP (including a balance sheet and profit and loss statement) and audited by PricewaterhouseCoopers LLP or another firm of independent public accountants of similar standing;
|
(c)
|
together with each of the statements delivered pursuant to the foregoing clause (a) or (b), a certificate, executed by the chief financial officer, the treasurer or the corporate controller of the Borrower, showing, as of the last day of the relevant Fiscal Quarter or Fiscal Year compliance with the covenants set forth in Section 7.2.4 (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
|
(d)
|
as soon as possible after the occurrence of a Default or Prepayment Event, a statement of the chief financial officer of the Borrower setting forth details of such Default or Prepayment Event (as the case may be) and the action which the Borrower has taken and proposes to take with respect thereto;
|
(e)
|
as soon as the Borrower becomes aware thereof, notice of any Material Litigation except to the extent that such Material Litigation is disclosed by the Borrower in filings with the SEC;
|
(f)
|
promptly after the sending or filing thereof, copies of all reports which the Borrower sends to all holders of each security issued by the Borrower, and all registration statements which the Borrower or any of its Subsidiaries files with the SEC or any national securities exchange; and
|
(g)
|
such other information respecting the condition or operations, financial or otherwise, of the Borrower or any of its Subsidiaries as any Lender through the Facility Agent may from time to time reasonably request;
|
(a)
|
in the case of the Borrower, the maintenance and preservation of its corporate existence (subject to the provisions of Section 7.2.6);
|
(b)
|
in the case of the Borrower, maintenance of its qualification as a foreign corporation in the State of Florida;
|
(c)
|
the payment, before the same become delinquent, of all taxes, assessments and governmental charges imposed upon it or upon its property, except to the extent being diligently contested in good faith by appropriate proceedings;
|
(d)
|
compliance with all applicable Environmental Laws;
|
(e)
|
compliance with all anti-money laundering laws and Anti-Corruption Laws applicable to the Borrower, including by not making or causing to be made any offer, gift or payment, consideration or benefit of any kind to anyone, either directly or indirectly, as an inducement or reward for the performance of any of the transactions contemplated by this Agreement to the extent the same would be in contravention of such applicable laws; and
|
(f)
|
the Borrower will maintain in effect policies and procedures designed to procure compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions.
|
(a)
|
from the Delivery Date, cause the Purchased Vessel to be exclusively operated by or chartered to the Borrower or one of the Borrower's wholly owned Subsidiaries, provided that the Borrower or such Subsidiary may charter out the Purchased Vessel (i) to entities other than the Borrower and the Borrower's wholly owned Subsidiaries and (ii) on a time charter with a stated duration not in excess of one year;
|
(b)
|
from the Delivery Date, cause the Purchased Vessel to be kept in such condition as will entitle her to classification by a classification society of recognised standing;
|
(c)
|
on the Delivery Date, provide the following to the Facility Agent with respect to the Purchased Vessel:
|
(d)
|
within seven days after the Delivery Date, provide the following to the Facility Agent with respect to the Purchased Vessel:
|
(a)
|
Indebtedness secured by Liens of the type described in Section 7.2.3;
|
(b)
|
Indebtedness owing to the Borrower or a wholly owned direct or indirect Subsidiary of the Borrower;
|
(c)
|
Indebtedness incurred to finance, refinance or refund the cost (including the cost of construction) of assets acquired after the Effective Date;
|
(d)
|
Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted to be secured under Section 7.2.3(c), at any one time outstanding not exceeding the greater of (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such Indebtedness, as applicable) (x) 5.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter and (y) $735,000,000; and
|
(e)
|
obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes.
|
(a)
|
Liens on assets (including, without limitation, shares of capital stock of corporations and assets owned by any corporation that becomes a Subsidiary of the Borrower after the Effective Date) acquired after the Effective Date (whether by purchase, construction or otherwise) by the Borrower or any of its Subsidiaries (other than (x) an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, after three months after the acquisition of a Vessel, owns a Vessel free of any mortgage Lien), which Liens were created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such assets, so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each such Lien is created within three months after the acquisition of the relevant assets;
|
(b)
|
the Construction Mortgage but only to the extent that the same is discharged on the Delivery Date;
|
(c)
|
in addition to other Liens permitted under this Section 7.2.3, Liens securing Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted under Section 7.2.2(d), at any one time outstanding not exceeding the greater of (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such indebtedness, as applicable) (x) 5.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter or (y) $735,000,000, provided that, with respect to each such item of Indebtedness, the fair market value of the assets subject to Liens securing such Indebtedness (determined at the time of the creation of such Lien) shall not exceed two times the aggregate principal amount of such Indebtedness (and for purposes of this clause (c), the fair market value of any assets shall be determined by (i) in the case of any Vessel, by an Approved Appraiser selected by the Borrower and (ii) in the case of any other assets, by an officer of the Borrower or by the board of directors of the Borrower);
|
(d)
|
Liens on assets acquired after the Effective Date by the Borrower or any of its Subsidiaries (other than by (x) any Subsidiary that is an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, owns a Vessel free of any mortgage Lien) so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each of such Liens existed on such assets before the time of its acquisition and was not created by the Borrower or any of its Subsidiaries in anticipation thereof;
|
(e)
|
Liens on any asset of any corporation that becomes a Subsidiary of the Borrower (other than a corporation that also becomes a Subsidiary of an Existing Principal Subsidiary) after the Effective Date so long as (i) the acquisition or creation of such corporation by the Borrower is not otherwise prohibited by the terms of this Agreement and (ii) such Liens are in existence at the time such corporation
|
(f)
|
Liens securing Government-related Obligations;
|
(g)
|
Liens for taxes, assessments or other governmental charges or levies not at the time delinquent or thereafter payable without penalty or being diligently contested in good faith by appropriate proceedings;
|
(h)
|
Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue or being diligently contested in good faith by appropriate proceedings;
|
(i)
|
Liens incurred in the ordinary course of business in connection with workers' compensation, unemployment insurance or other forms of governmental insurance or benefits;
|
(j)
|
Liens for current crew's wages and salvage;
|
(k)
|
Liens arising by operation of law as the result of the furnishing of necessaries for any Vessel so long as the same are discharged in the ordinary course of business or are being diligently contested in good faith by appropriate proceedings;
|
(l)
|
Liens on Vessels that:
|
(m)
|
normal and customary rights of set-off upon deposits of cash or other Liens originating solely by virtue of any statutory or common law provision relating to bankers' liens, rights of set-off or similar rights in favour of banks or other depository institutions;
|
(n)
|
Liens in respect of rights of set-off, recoupment and holdback in favour of credit card processors securing obligations in connection with credit card processing services incurred in the ordinary course of business; and
|
(o)
|
Liens on cash or Cash Equivalents securing obligations in respect of Hedging Instruments permitted under Section 7.2.2(e) or securing letters of credit that support such obligations.
|
(a)
|
Net Debt to Capitalisation Ratio, as at the end of any Fiscal Quarter, to be greater than 0.625 to 1.
|
(b)
|
Fixed Charge Coverage Ratio to be less than 1.25 to 1 as at the last day of any Fiscal Quarter.
|
(c)
|
Stockholders' Equity to be less than, as at the last day of any Fiscal Quarter, the sum of (i) $4,150,000,000 plus (ii) 50% of the consolidated net income of the Borrower and its Subsidiaries for the period commencing on January 1, 2007 and ending on the last day of the Fiscal Quarter most recently ended (treated for these purposes as a single accounting period, but in any event excluding any Fiscal Quarters for which the Borrower and its Subsidiaries have a consolidated net loss).
|
(a)
|
the Borrower or any direct or indirect wholly owned Subsidiary of the Borrower; and
|
(b)
|
other Investments by the Principal Subsidiaries in an aggregate amount not to exceed $100,000,000 at any time outstanding.
|
(a)
|
any such Subsidiary may (i) liquidate or dissolve voluntarily into, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 7.2.7; and
|
(b)
|
so long as no Event of Default has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such
|
(a)
|
sales of assets (including, without limitation, Vessels) so long as at the time of any such sale:
|
(b)
|
sales of capital stock of any Principal Subsidiary of the Borrower so long as a sale of all of the assets of such Subsidiary would be permitted under the foregoing clause (a);
|
(c)
|
sales of capital stock of any Subsidiary other than a Principal Subsidiary;
|
(d)
|
sales of other assets in the ordinary course of business; and
|
(e)
|
sales of assets between or among the Borrower and Subsidiaries of the Borrower.
|
(a)
|
generally fail to pay, or admit in writing its inability to pay, its debts as they become due;
|
(b)
|
apply for, consent to, or acquiesce in, the appointment of a trustee, receiver, sequestrator or other custodian for it or any of its property, or make a general assignment for the benefit of creditors;
|
(c)
|
in the absence of such application, consent or acquiescence, permit or suffer to exist the appointment of a trustee, receiver, sequestrator or other custodian for it or for a substantial part of its property, and such trustee, receiver, sequestrator or other custodian shall not be discharged within 60 days, provided that in the case of such an event in respect of the Borrower, the Borrower hereby expressly authorises the Facility Agent and each Lender to appear in any court conducting any relevant proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents;
|
(d)
|
permit or suffer to exist the commencement of any bankruptcy, reorganisation, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up or liquidation proceeding, in respect of the Borrower or any of such Subsidiaries, and, if any such case or proceeding is not commenced by the Borrower or such Subsidiary, such case or proceeding shall be consented to or acquiesced in by the Borrower or such Subsidiary or shall result in the entry of an order for relief or shall remain for 60 days undismissed, provided that the Borrower hereby expressly authorises the Facility Agent and each Lender to appear in any court conducting any such case or proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents; or
|
(e)
|
take any corporate action authorising, or in furtherance of, any of the foregoing.
|
(a)
|
enforcement proceedings in respect of any material assets of the Borrower or such Principal Subsidiary shall have been commenced by any creditor upon such judgment or order and shall not have been stayed or enjoined within five (5) Business Days after the commencement of such enforcement proceedings; or
|
(b)
|
there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect.
|
(a)
|
this Article X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Facility Agent under this Agreement; and
|
(b)
|
Section 11.3 and Section 11.4 shall continue to inure to its benefit.
|
(a)
|
modify any requirement hereunder that any particular action be taken by all the Lenders or by the Required Lenders shall be effective unless consented to by each Lender;
|
(b)
|
modify this Section 11.1 or change the definition of "Required Lenders" shall be made without the consent of each Lender;
|
(c)
|
increase the Commitment of any Lender shall be made without the consent of such Lender;
|
(d)
|
reduce any fees described in Article III payable to any Lender shall be made without the consent of such Lender;
|
(e)
|
extend the Commitment Termination Date of any Lender shall be made without the consent of such Lender;
|
(f)
|
extend the due date for, or reduce the amount of, any scheduled repayment or prepayment of principal of or interest on the Loan (or reduce the principal amount of or rate of interest on the Loan) owed to any Lender shall be made without the consent of such Lender; or
|
(g)
|
affect adversely the interests, rights or obligations of the Facility Agent in its capacity as such shall be made without consent of the Facility Agent.
|
(a)
|
All notices and other communications provided to any party hereto under this Agreement or any other Loan Document shall be in writing, by facsimile or by electronic mail and addressed, delivered or transmitted to such party at its address, facsimile number or electronic mail address set forth below its signature hereto or set forth in the Lender Assignment Agreement or at such other address, or facsimile number as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when transmitted provided it is received in legible form; any notice, if transmitted by electronic mail, shall be deemed given upon acknowledgment of receipt by the recipient.
|
(b)
|
So long as KfW IPEX is the Facility Agent, the Borrower may provide to the Facility Agent all information, documents and other materials that it furnishes to the Facility Agent hereunder or any other Loan Document (and any guaranties, security agreements and other agreements relating thereto), including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other materials, but excluding any such communication that (i) relates to a request for a new, or a conversion of an existing advance or other extension of credit (including any election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due hereunder or any other Loan Document prior to the scheduled date therefor, (iii) provides notice of any Default or Event of Default or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of the Agreement and/or any advance or other extension of credit hereunder (all such non-excluded communications being referred to herein collectively as "Communications"), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Facility Agent at claudia.wenzel@kfw.de (or such other email address notified by the
|
(c)
|
The Borrower agrees that the Facility Agent may make such items included in the Communications as the Borrower may specifically agree available to the Lenders by posting such notices, at the option of the Borrower, on Intralinks or any similar such platform (the "Platform") acceptable to the Borrower. Although the primary web portal is secured with a dual firewall and a User ID/Password Authorisation System and the Platform is secured through a single user per deal authorisation method whereby each user may access the Platform only on a deal-by-deal basis, the Borrower acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided "as is" and "as available" and (iii) neither the Facility Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Facility Agent or any of its Affiliates in connection with the Platform.
|
(d)
|
The Facility Agent agrees that the receipt of Communications by the Facility Agent at its e-mail address set forth above shall constitute effective delivery of such Communications to the Facility Agent for purposes hereunder and any other Loan Document (and any guaranties, security agreements and other agreements relating thereto).
|
(a)
|
except to the extent permitted under Section 7.2.6, the Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of the Facility Agent and each Lender; and
|
(b)
|
the rights of sale, assignment and transfer of the Lenders are subject to Section 11.11.
|
(a)
|
written notice of such assignment or transfer, together with payment instructions, addresses and related information with respect to such Assignee Lender, shall have been given to the Borrower and the Facility Agent by such Lender and such Assignee Lender;
|
(b)
|
such Assignee Lender shall have executed and delivered to the Borrower and the Facility Agent a Lender Assignment Agreement, accepted by the Facility Agent and, if the applicable portion of the Loan is a Fixed Rate Loan, any other agreements required by the Facility Agent or the KfW in connection therewith; and
|
(c)
|
the processing fees described below shall have been paid.
|
(a)
|
no participation contemplated in this Section 11.11.2 shall relieve such Lender from its obligations hereunder;
|
(b)
|
such Lender shall remain solely responsible for the performance of its obligations hereunder;
|
(c)
|
the Borrower and the Facility Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and each of the other Loan Documents;
|
(d)
|
no Participant, unless such Participant is an Affiliate of such Lender, shall be entitled to require such Lender to take or refrain from taking any action hereunder or under any other Loan Document, except that such Lender may agree with any Participant that such Lender will not, without such Participant's consent, take any actions of the type described in clauses (b) through (f) of Section 11.1;
|
(e)
|
the Borrower shall not be required to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had no participating interest been sold; and
|
(f)
|
each Lender that sells a participation under this Section 11.11.2 shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts of (and stated interest on) each of the Participant's interest in that Lender's portion of the Loan, Commitments or other interests hereunder (the "Participant Register"). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender may treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes hereunder.
|
(g)
|
KfW IPEX may not sell participating interests pursuant to this Section 11.11.2 that, when taken together with Loans and/or Commitments sold by KfW IPEX pursuant
|
(a)
|
The Hermes Insurance Policy will cover 95% of the Loan.
|
(b)
|
The Hermes Fee will equal 2.37% of the aggregate principal amount of the Loan as at the Delivery Date.
|
(c)
|
The parties have entered into this Agreement on the basis that the Hermes Insurance Policy shall contain the following terms and should such terms not be included within the Hermes Insurance Policy, then the Borrower may cancel the Commitment(s):
|
(i)
|
25% of the Hermes Fee as in effect on the date of issuance of the Hermes Insurance Policy ("First Fee") will be payable to the Hermes Agent or Hermes in Dollars within two (2) Business Days of receipt by the Borrower of demand from the Hermes Agent following the later to
|
(ii)
|
the balance of the Hermes Fee (being the amount thereof under paragraph (b) above less the First Fee) ("Second Fee") will be payable in Dollars to the Hermes Agent or Hermes on the Delivery Date ;
|
(iii)
|
if the Commitments are cancelled in full by the Borrower or the Lenders on or prior to the Delivery Date (including, for the avoidance of doubt, subsequent to disbursement of the Loan and prepayment thereof by the Borrower under Section 3.7), Hermes shall be required to reimburse the Hermes Agent the amount of the First Fee less an administration fee (such administration fee to be no greater than 5% of the amount refunded but in any event not exceeding EUR 2,500);
|
(iv)
|
if the Commitments are cancelled in part by the Borrower on or prior to the Delivery Date (including, for the avoidance of doubt, subsequent to disbursement of the Loan and prepayment thereof by the Borrower under Section 3.7), Hermes shall be required to reimburse the Hermes Agent an amount equal to a corresponding proportion of the First Fee, based on the proportion of the aggregate Commitments prior to such cancellation to the aggregate Commitments after giving effect to such cancellation, less an administration fee (such administration fee to be no greater than 5% of the amount refunded but in any event not exceeding EUR 2,500); and
|
(v)
|
if, after the Delivery Date, the Borrower prepays all or part of the Loan in accordance with this Agreement, Hermes shall be required to reimburse the Hermes Agent an amount equal to a corresponding proportion of the unexpired portion of the Hermes Fee, having regard to the amount of the prepayment and the remaining term of the Loan less the sum of (x) a break funding fee equal to 20% of the unexpired portion of the Hermes Fee and (y) an administration fee (such fee to be no greater than 5% of the amount refunded but in any event not exceeding EUR 2,500).
|
(a)
|
Provided that the Hermes Insurance Policy complies with Section 11.13.1, the Borrower shall pay (a) the First Fee to the Hermes Agent in accordance with section 11.13.1(c)(i) and (b) the Second Fee to the Hermes Agent on the Delivery Date. In each case, if received by the Hermes Agent, the Hermes Agent shall pay such amount to Hermes.
|
(b)
|
Provided that the Hermes Insurance Policy complies with Section 11.13.1, the Borrower shall pay to the Hermes Agent an issue fee of EUR 12,500 for the issue of the Hermes Insurance Policy at the same time that the First Fee is payable.
|
(a)
|
Promptly upon receipt of the Hermes Insurance Policy from Hermes, the Hermes Agent shall (subject to any confidentiality undertakings given to Hermes by the Hermes Agent pursuant to the terms of the Hermes Insurance Policy) send a copy thereof to the Borrower.
|
(b)
|
The Hermes Agent shall perform such acts or provide such information which are, acting reasonably, within its power so to perform or so to provide, as required by Hermes under the Hermes Insurance Policy and as are necessary to ensure that the Lenders obtain the support of Hermes pursuant to the Hermes Insurance Policy.
|
(c)
|
The Hermes Agent shall (in the circumstances described in Section 11.13.1(c)(iii), (iv) or (v)):
|
(i)
|
make written requests to Hermes seeking a reimbursement of the Hermes Fee promptly after the relevant cancellation or prepayment and (subject to any confidentiality undertakings given to Hermes by the Hermes Agent pursuant to the terms of the Hermes Insurance Policy) provide a copy of the request to the Borrower;
|
(ii)
|
use its reasonable endeavours to maximise the amount of any reimbursement of the Hermes Fee to which the Hermes Agent is entitled;
|
(iii)
|
pay to the Borrower the full amount of any reimbursement of the Hermes Fee that the Hermes Agent receives from Hermes within two (2) Business Days of receipt with same day value; and
|
(iv)
|
relay the good faith concerns of the Borrower to Hermes regarding the amount it is required to pay to Hermes or the amount of any reimbursement to which the Hermes Agent is entitled, it being agreed that the Hermes Agent's obligation shall be no greater than simply to pass on to Hermes the Borrower's concerns.
|
(d)
|
Each Lender will co-operate with the Hermes Agent, the Facility Agent and each other Lender, and take such action and/or refrain from taking such action as may be reasonably necessary, to ensure that the Hermes Insurance Policy and each CIRR Agreement continue in full force and effect and shall indemnify and hold harmless each other Lender in the event that the Hermes Insurance Policy or such CIRR Agreement (as the case may be) does not continue in full force and effect due to its gross negligence or wilful default.
|
(a)
|
the government of the Federal Republic of Germany, the Federal Audit Court or any authorised representatives specified by these bodies shall be authorised at any time to inspect and make or demand copies of the records, accounts, documents and other deeds of any or all of the Lenders relating to this Agreement;
|
(b)
|
in the course of its activity as the Facility Agent, the Facility Agent may:
|
|
(i)
|
provide the government of the Federal Republic of Germany with information concerning the transactions to be handled by it under this Agreement; and
|
|
(ii)
|
disclose information concerning the subsidised transaction contemplated by this Agreement in the context of internationally agreed consultation/notification proceedings and statutory specifications, including information received from the Lenders relating to this Agreement; and
|
(c)
|
the Facility Agent and (to the extent the Lenders have entered into an Option A Refinancing Agreement with KfW) the Lenders are entitled to disclose to KfW:
|
|
(i)
|
circumstances pertaining to the Loan, proper repayment and collateralisation;
|
|
(ii)
|
extraordinary events which may jeopardise the proper servicing of the Loan;
|
|
(iii)
|
any information required by KfW with respect to the proper use of any refinancing funds granted to the respective Lender in respect of the Loan; and
|
|
(iv)
|
the Loan Documents;
|
(a)
|
If the provisions of Section 3.2(c), 3.2(d) or 9.1.11 apply (and having regard to clause (b) below), the Facility Agent, the Borrower and the Lenders (or, in the case of Section 3.2(c) or 3.2(d), any affected Lender) shall discuss in good faith (but without obligation) for a period (the "Mitigation Period") of not less than 30 days (and which in the case of Section 3.2(d) shall commence on the first day of the 50-day period referred to in that Section and, in the case of Section 9.1.11, shall run concurrently with the 30 day period referred to in that Section) after (x) the date on which the Illegality Notice is given or (y) the date of Section 9.1.11 becomes applicable, as the case may be:
|
(i)
|
in the case of Section 3.2(c) or 3.2(d), what steps may be open to the relevant Lender to mitigate or remove such circumstances (including, without limitation, the possibility of assigning the Lender’s Commitment to an Affiliate or another Lending Office); and
|
(ii)
|
in the case of Section 9.1.11, the circumstances in which Section 9.1.11 has become applicable and whether there are any steps or actions which can be taken to remove the effect of Section 9.1.11 and/or reinstate the Hermes Insurance Policy.
|
(b)
|
To the extent required by or considered necessary by any Party, the Lenders (and, in the case of Section 3.2(c) or 3.2(d), any affected Lender) shall use commercially reasonable efforts to include Hermes in all foregoing discussions.
|
(c)
|
If an Illegality Notice shall be given by any Lender during the period falling 20 days prior to the anticipated Delivery Date, the affected Lender will use all reasonable efforts to accelerate the mitigation steps of the type described or to be
|
ROYAL CARIBBEAN CRUISES LTD.
|
||
By: /s/ Antje M. Gibson
|
||
Name:
|
Antje M. Gibson
|
|
Title:
|
VP & Treasurer
|
|
Address: 1050 Caribbean Way
|
||
Miami, Florida 33132
|
||
Facsimile No.: (305) 539-6400
|
||
Email:
|
agibson@rccl.com
|
|
bstein@rccl.com
|
||
Attention: Vice President, Treasurer
|
||
With a copy to: General Counsel
|
||
KFW IPEX-BANK GMBH, as Hermes Agent,
|
|||
Facility Agent and Lender
|
|||
Commitment
|
|||
100% of the US Dollar
|
By: /s/ Claudia Wenzel
|
||
Maximum Loan
|
Name:
|
Claudia Wenzel
|
|
Amount
|
Title:
|
Vice President
|
|
By: /s/ Markus Lutz
|
|||
Name:
|
Markus Lutz
|
||
Title:
|
Vice President
|
||
Address: Palmengartenstrasse 5-9
|
|||
D-60325 Frankfurt am Main
|
|||
Germany
|
|||
Facsimile No.: +49 (69) 7431 3768
|
|||
Email: claudia.wenzel@kfw.de
|
|||
Attention: Maritime Industries
|
|||
With a copy to: Credit Operations
|
|||
Facsimile No.: +49 (69) 7431 2944
|
Attention:
|
[Name]
|
[Title]
|
Amount to be Transferred
|
Settlement Instructions
|
Royal Caribbean Cruises Ltd.
|
|
By: ____________________________
|
|
Name:
|
|
Title:
|
To the Lenders party to the Credit Agreement referred to below and to KfW IPEX-Bank GmbH as Facility Agent
|
|
A.
|
The Credit Agreement; and
|
B.
|
An Account Pledge Agreement dated ____________ (the “Account Pledge Agreement”) made between the Borrower, the Facility Agent and the Lenders respecting the Pledged Accounts described therein.
|
1.
|
The Borrower is a corporation duly incorporated, validly existing under the Business Corporation Act and in good standing under the law of the Republic of Liberia;
|
2.
|
The Borrower has full right, power and authority to enter into, execute and deliver the Documents and to perform each and all of its obligations under the Documents;
|
3.
|
Each of the Documents has been executed and delivered by a duly authorized signatory of the Borrower;
|
4.
|
Each of the Documents constitutes the legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms;
|
5.
|
Neither the execution nor delivery of either of the Documents, nor the transactions contemplated therein, nor compliance with the terms and conditions thereof, will contravene any provisions of Liberian law or violate any provisions of the Articles of Incorporation (inclusive of any articles of amendment thereto) or the Bylaws of the Borrower;
|
6.
|
No consent or approval of, or exemption by, any Liberian governmental or public bodies and authorities are required in connection with the execution and delivery by the Borrower of either of the Documents;
|
7.
|
It is not necessary to file, record or register either of the Documents or any instrument relating thereto or effect any other official action in any public office or elsewhere in the Republic of Liberia to render any such document enforceable against the Borrower;
|
8.
|
Assuming neither of the Documents has been executed in the Republic of Liberia, no stamp or registration or similar taxes or charges are payable in the Republic of Liberia in respect of either of the Documents or the enforcement thereof in the courts of Liberia other than customary court fees payable in litigation in the courts of Liberia;
|
9.
|
The Borrower is not required or entitled under any existing applicable law or regulation of the Republic of Liberia to make any withholding or deduction in respect of any tax or otherwise from any payment which it is or may be required to make under either of the Documents;
|
10.
|
Assuming that the shares of the Borrower are not owned, directly or indirectly, by the Republic of Liberia or any other sovereign under Liberian law, neither the Borrower nor the property or assets of the Borrower is immune from the institution of legal proceedings or the obtaining or execution of a judgment in the Republic of Liberia;
|
11.
|
Under Liberian law the choice by the Borrower of English law to govern the Credit Agreement is a valid choice of law and the irrevocable submission thereunder by the Borrower to the jurisdiction of the courts of England is a valid submission to such courts; and
|
11.
|
Under Liberian law the choice by the Borrower of law of the Federal Republic of Germany to govern the Account Pledge Agreement is a valid choice of law and the submission thereunder by the Borrower to the jurisdiction of Frankfurt am Main, Germany is a valid submission to such jurisdiction.
|
NORTON ROSE FULBRIGHT
|
||
[●]
|
Norton Rose Fulbright LLP
|
|
3 More London Riverside
|
||
London SE1 2AQ
|
||
United Kingdom
|
||
Tel +44 20 7283 6000
|
||
To the Lenders party to the Credit Agreement referred to below and to KfW IPEX-Bank GmbH as Agent
|
Fax +44 20 7283 6500
|
|
DX 85 London
|
||
nortonrosefulbright.com
|
||
KfW IPEX-Bank GmbH
|
||
Palmengartenstrasse 5-9
|
Direct line
|
|
60325 Frankfurt am Main
|
+44 20 7444 3436
|
|
Germany
|
||
Email
|
||
Simon.Hartley@nortonrosefulbright.com
|
||
Your reference
|
Our reference
|
|
SRH/LN87935
|
||
1
|
Background
|
1.1
|
This opinion is given at the request of our client KfW IPEX-Bank GmbH (the Agent) in relation to the English law aspects of a loan transaction (the Transaction) by which certain banks party thereto as lenders (the Lenders) have made available a credit facility of up to EUR€[],000,000 to Royal Caribbean Cruises Ltd. as borrower (the Company) pursuant to a Credit Agreement (as defined in Schedule 1).
|
1.2
|
We have acted as English legal advisers to the Agent and the Lenders in relation to the Transaction.
|
1.3
|
We have examined the copy documents relating to the Transaction governed by English law described in Schedule 1 (the English Documents).
|
1.4
|
For the purpose of giving this opinion, we have examined no other documents and have undertaken no other enquiries.
|
1.5
|
Our opinions are given in part 2. Part 3 explains their scope, part 4 describes the assumptions on which they are made and part 5 contains the qualifications to which they are subject.
|
2
|
Opinions
|
2.1
|
The obligations which the Company is expressed to assume in each English Document to which it is a party constitute its legal, valid, binding and enforceable obligations.
|
2.2
|
The effectiveness or admissibility in evidence of the English Documents is not dependent on:
|
(a)
|
any registrations, filings, notarisations or similar actions; or
|
(b)
|
any consents, authorisations, licences or approvals of general application from governmental, judicial or public bodies.
|
2.3
|
No stamp, registration or similar duty or tax is payable in respect of the creation of any English Document.
|
2.4
|
The choice of English law to govern the English Documents and any non-contractual obligations connected to the English Documents is effective.
|
2.5
|
The agreement by the Company in an English Document that the English courts have jurisdiction in respect of that document or any non-contractual obligations connected to that document is effective.
|
3
|
Scope
|
3.1
|
This opinion and any non-contractual obligations connected with it are governed by English law and are subject to the exclusive jurisdiction of the English courts.
|
3.2
|
This opinion is given only in relation to English law as it is understood at the date of this opinion. We have no duty to keep you informed of subsequent developments which might affect this opinion.
|
3.3
|
If a question arises in relation to a cross-border transaction, it may not be the English courts which decide that question and English law may not be used to settle it.
|
3.4
|
We express no opinion on, and have taken no account of, the laws of any jurisdiction other than England. In particular, we express no opinion on the effect of documents governed by laws other than English law.
|
3.5
|
We express no opinion on matters of fact.
|
3.6
|
Our opinion is limited to the matters expressly stated in part 2, and it is not to be extended by implication. In particular, we express no opinion on the accuracy of the assumptions contained in part 4. Each statement which has the effect of limiting our opinion is independent of any other such statement and is not to be impliedly restricted by it. Paragraph headings are to be ignored when construing this opinion.
|
3.7
|
Our opinion is given solely for the benefit of the Agent and the Lenders from time to time (as that expression is defined in the Credit Agreement) acting through the Agent. It may not be relied on by any other person.
|
3.8
|
This opinion may not be disclosed to any person other than:
|
(a)
|
those persons (such as auditors or regulatory authorities) who, in the ordinary course of business of the Agent and the Lenders, have access to their papers and records or are entitled by law to see them; and
|
(b)
|
those persons who are considering becoming Lenders,
|
4
|
Assumptions
|
4.1
|
Each person which is expressed to be party to the English Documents:
|
(a)
|
is duly incorporated and is validly existing;
|
(b)
|
is not the subject of any insolvency proceedings (which includes those relating to bankruptcy, liquidation, administration, administrative receivership and reorganisation) in any jurisdiction;
|
(c)
|
has the capacity to execute each English Document to which it is expressed to be a party and to perform the obligations it is expressed to assume under it;
|
(d)
|
has taken all necessary corporate action to authorise it to execute each English Document to which it is expressed to be a party and to perform the obligations it is expressed to assume under it; and
|
(e)
|
has duly executed each English Document to which it is expressed to be a party.
|
4.2
|
The English Documents have been or will be executed in the form provided to us. There has been no variation, waiver or discharge of any of the provisions of the English Documents.
|
4.3
|
None of the English Documents is (wholly or in part) void, voidable, unenforceable, ineffective or otherwise capable of being affected as a result of any vitiating matter (such as mistake, misrepresentation, duress, undue influence, fraud, breach of directors’ duties, illegality or public policy) that is not clear from the terms of the English Documents.
|
4.4
|
The Company is solvent both on a balance sheet and on a cash-flow basis, and will remain so immediately after the Transaction has been completed.
|
4.5
|
There are no other facts relevant to this opinion that do not appear from the documents referred to in part 1.
|
4.6
|
No law of any jurisdiction other than England has any bearing on the opinion contained in part 2
|
5
|
Qualifications
|
5.1
|
The enforcement of contractual obligations is subject to the general principles of contractual liability, in particular the matters described in the following paragraphs.
|
5.2
|
Apart from claims for the payment of debts (including the repayment of loans), contractual obligations are normally enforced by an award of damages for the loss suffered as a result of a breach of contract; and recoverable loss is restricted by principles such as causation, remoteness and mitigation. The specific performance of contractual obligations is a discretionary remedy and is only available in limited circumstances.
|
5.3
|
Contractual obligations can be discharged by matters such as breach of contract or frustration. Claims may become time-barred or may be subject to defences such as set-off or estoppel.
|
5.4
|
The interpretation of the meaning and legal effect of any particular provision of a contract is a matter of judgment, which will ultimately be determined by the relevant tribunal. In addition, a document may be capable of being rectified if it does not express the common intention of the parties.
|
5.5
|
English law has traditionally been protective of guarantors and has developed a number of defences for them. Although guarantees generally purport to exclude many of these defences, a guarantee, and any third party security generally, will be construed in favour of the guarantor or grantor of security where possible.
|
5.6
|
A clause in a contract which excludes or limits an obligation of one of the parties or the liability for breach of that obligation will be construed restrictively, against the person who wishes to rely on it. In addition, a contractual provision which excludes the liability of a trustee (including a security trustee) may not be enforceable in all circumstances.
|
5.7
|
If a provision of a contract is particularly one-sided it is more likely to be construed against the party who wishes to rely on it.
|
5.8
|
A provision of a contract may be ineffective if it is incomplete or uncertain or provides for a matter to be determined by future agreement.
|
5.9
|
A provision of a contract which provides for the conclusive certification or determination of a matter by one party may not prevent judicial inquiry into the merits of the claim.
|
5.10
|
A provision for the payment of a sum in the event of a breach of contract is unenforceable if it is construed as a penalty rather than a genuine pre-estimate of the loss likely to be suffered as a result of the breach and, if that sum has been paid, it may be repayable in whole or in part.
|
5.11
|
A contractual provision for the forfeiture of a proprietary or possessory interest, such as the rights of a lessee under a chattel lease, may be overridden.
|
5.12
|
An undertaking to assume liability for stamp duty or similar taxes may be ineffective.
|
5.13
|
As a general principle, an authority or power of attorney can be revoked at any time, and will be revoked if the donor enters into insolvency proceedings. This is so even if the authority or power is expressed to be irrevocable and the revocation is therefore made in breach of contract. The main exception to this principle is where the authority or power is granted as part of a security arrangement.
|
5.14
|
A provision of a contract which purports to exclude the effect of prior or subsequent agreements, representations or waivers may be ineffective.
|
5.15
|
A provision of a contract which provides what will happen in the event of an illegality (including a provision for severance of part of the contract) may not be enforceable.
|
5.16
|
An indemnity in respect of criminal liability may not be enforceable.
|
5.17
|
An indemnity for the costs of litigation may not be enforceable.
|
5.18
|
The parties’ rights are subject to laws affecting creditors’ rights generally, such as those relating to insolvency (which includes bankruptcy, liquidation, administration, administrative receivership and reorganisation). These laws can apply to persons incorporated or resident outside England, as well as to those incorporated or resident in England.
|
5.19
|
In particular, on an insolvency:
|
(a)
|
contractual and other personal rights will reduce proportionately with all similar rights, and contractual provisions which would conflict with this principle (such as a pro rata sharing clause) are ineffective;
|
(b)
|
transactions entered into in the period before the insolvency starts (that period generally being no longer than two years) may be set aside in certain circumstances; and
|
(c)
|
the ability of a secured creditor to enforce its security may be subject to limitations, for instance in an administration.
|
5.20
|
The law which governs a contract and any connected non-contractual obligations is not determinative of all issues which arise in connection with that contract. For instance:
|
(a)
|
it may not be relevant to the determination of proprietary issues (such as those relating to security);
|
(b)
|
rules which are mandatory (which includes public policy rules) in a jurisdiction which is connected with the contract or in the jurisdiction where the issue is decided may be applied regardless of the provisions of the contract; and
|
(c)
|
in insolvency proceedings, the law governing those proceedings may override the law governing the contract.
|
5.21
|
There are circumstances in which the English courts may, or must, decline jurisdiction or stay proceedings. Additionally, it may not be possible to commence proceedings because of an inability to comply with service of process requirements. These problems are less likely to occur where one or more of the parties is domiciled in the European Union.
|
5.22
|
The English courts have a discretion to accept jurisdiction in an appropriate case even though there is an agreement that other courts have (exclusive or non-exclusive) jurisdiction. This is less likely to occur where the other courts are in the European Union.
|
5.23
|
The jurisdiction of the English courts in relation to insolvency matters is not dependent on the submission of the parties to the jurisdiction. The precise scope of that jurisdiction depends on the nature of the insolvency procedure in question.
|
1
|
A credit agreement dated [l] (the Credit Agreement) made between (1) Royal Caribbean Cruises Ltd. as borrower (the Borrower), (2) KfW IPEX-Bank GmbH (KfW IPEX) as initial mandated lead arranger, facility agent, Hermes agent, original lender and (c) the financial institutions party thereto as lenders from time to time, to provide a term loan to partly finance the construction of Hull no. S-700 at Meyer Werft GmbH & Co. KG.
|
2
|
Two fee letters both dated [l] made between (1) KfW IPEX and (2) the Borrower in relation to certain of the fees payable in respect of the Credit Agreement.
|
Norton Rose Fulbright (Germany) LLP
|
||
Bleichenbrucke 10 (Kaufmannshaus)
|
||
20354 Hamburg
|
||
|
||
Tel +49 40 970799-0
|
||
Norton Rose Fulbirhgt (Germany) LLP - Bleichenbrucke 10 (Kaufmannshaus) 2034 Hamburg
|
Fax +49 40 970799-111
|
|
nortonrosefulbright.com
|
||
|
||
KfW IPEX-Bank GmbH
|
||
(in its capacity as Facility Agent and Hermes Agent) | From Timo Noftz | |
Palmengartenstraße 5-9
|
Tel +49 40 970799 199
|
|
60325 Frankfurt am Main
|
Fax +49 40 970 799 111
|
|
Germany
|
Email timo.noftz@nortonrosefulbright.com | |
Our ref TNOF/HA02161 | ||
|
||
[●] |
1.1
|
Unless otherwise defined herein or unless the context otherwise requires, capitalised terms defined in the Document shall have the same meanings when used in this opinion.
|
1.2
|
Headings and sub-headings in this opinion are for ease of reference only and do not affect the interpretation of this opinion.
|
1.3
|
In this opinion as well as in the Document which is in the English language, German legal concepts are expressed and described in the English language rather than in their original German form and such expressions and/or descriptions may not be identical in their meaning to the underlying German law concepts. Accordingly, any issues of interpretation arising in respect of this opinion or the Document which is in the English language will be determined by German courts in accordance with German law and we express no opinion on the interpretation that German courts may give to any such
|
2.1
|
In connection with this opinion, we have examined only the Document but not any other document or agreement referred to therein. Accordingly, we express no opinion as to any agreement, instrument or other document other than the Document as specified herein or as to any provision of the Document to the extent it cross-refers to an agreement, instrument or other document.
|
2.2
|
In giving this opinion we have relied exclusively upon the Document and have not independently verified its accuracy. This opinion is based upon and confined to the facts at the date hereof and to the law of the Federal Republic of Germany presently in force, as currently applied and construed by the German courts. This opinion does not relate to facts or laws or to the interpretation of laws after the date hereof and we do not assume any obligation to update this opinion or to inform you of any changes to facts or laws. We have made no investigation of, and this opinion does not address, the laws of any other jurisdiction.
|
2.3
|
We have not been responsible for, or assisted in, the investigation or verification of any statements of fact (including statements as to any law other than German law or the reasonableness of any assumption or statement of opinion).
|
2.4
|
We express no opinion as to matters of fact or the valuation of assets provided as security nor does this opinion address matters relating to tax.
|
3.1
|
Veracity and general matters
|
3.1.1
|
The Document submitted to us as photocopy or via fax or email conforms to the respective original Document; the original of such photocopy is an authentic and complete document.
|
3.1.2
|
Where the Document has been examined by us in draft or specimen form, it will be or has been executed or delivered, as applicable, in the form of that draft or specimen (i.e. no change has been or will be made to the terms and conditions thereof).
|
3.1.3
|
There are no written or oral agreements or arrangements which would expand, modify, or otherwise affect the respective rights, duties, and/or obligations of the parties as set forth in the Document and which would have an effect on the opinions rendered herein.
|
3.1.4
|
The Document has not been supplemented, amended or revoked after its date and prior to the execution hereof but remains accurate in all respects.
|
3.1.5
|
All signatures are genuine.
|
3.1.6
|
Any natural person acting as representative for the parties in the context of the execution of the Document was of sound mind when executing it.
|
3.1.7
|
Upon execution of the Document, the relevant parties and their respective directors, employees, agents and advisers did not act in bad faith or fraud, mistake or undue influence.
|
3.1.8
|
The other documents referred to in the Document are legal, valid and binding and their provisions do not contradict any of the provisions of the Document.
|
3.1.9
|
Each of the statements of matters of fact contained in the Document in relation to each of the parties to the Document is true, accurate and complete at all relevant times.
|
3.1.10
|
All of the representations and warranties given by any of the parties to the Document are, and, at the time they are repeated, will be at all relevant times, true and accurate and any representation or warranty given by any of the parties to the Document that it is not aware of or has no notice of any act, matter, thing or circumstance means that the same does not exist or has not occurred, as the case may be.
|
3.1.11
|
All consents, authorisations, licenses, approvals, registrations or other actions by or with any governmental authority (other than in Germany) required to be obtained for the execution and/or performance of the Document have been obtained.
|
3.1.12
|
All parties to the Document have all public permits, licenses and approvals to run, perform and carry on their relevant business.
|
3.2
|
Corporate power, authorisation and execution
|
3.2.1
|
Each of the parties to the Document is a duly incorporated or, as the case may be, established, and validly existing legal entity under its governing laws.
|
3.2.2
|
The Document has been duly executed by each party thereto.
|
3.3
|
Document
|
3.3.1
|
The Pledgor was, at the time of the Document coming into effect (Wirksamwerden) and, subject to the pledge granted under the Document, will remain the unrestricted owner of the assets, claims and/or rights serving as security under the Document which at the time were and, subject as aforesaid, will remain unencumbered.
|
3.3.2
|
The bank accounts and other assets referred to in the Document exist and are held by the Pledgor, the bank account details are correct and the other assets are also sufficiently and correctly described.
|
3.3.3
|
Any disputes arising in connection with the Document will be decided by German courts applying German conflict of law rules. We have not examined whether courts outside Germany may have jurisdiction regarding such disputes, nor do we express any opinion as to how such courts would construe and interpret the Document.
|
3.3.4
|
The Secured Obligations are validly existing, binding and enforceable obligations of the relevant persons towards the Pledgees.
|
3.3.5
|
That each and every clause of the Document has been specifically negotiated (individuell ausgehandelt) as between the parties thereto and has not been unilaterally imposed (einseitig gestellt) on any party by any other party thereto.
|
3.3.6
|
That the pledges created under the Document have been notified by the Pledgor to the relevant account bank in accordance with the Document.
|
3.4
|
Solvency and relationship to other creditors
|
3.4.1
|
As of the date of this opinion and as a consequence of doing any act or thing which the Document contemplates, permits or requires, the Pledgor is not, nor will be deemed, unable to pay any of its debts when due (Zahlungsunfähigkeit) and the Pledgor is not facing over-indebtedness (Überschuldung) or is subject to imminent illiquidity (drohende Zahlungsunfähigkeit).
|
3.4.2
|
No party to the Document is aware of any circumstances which would indicate that or give reason to enquire further whether or not any party to the Document is or would be, close to a situation of being presumably unable to pay its debts as they fall due (including German law drohende Zahlungsunfähigkeit or wirtschaftlicher Zusammenbruch).
|
3.4.3
|
As of the date of this opinion, no insolvency or winding up resolution or petition has been presented or an order has been made or rejected on grounds of insufficiency of assets (Abweisung mangels Masse) by a court or by directly applicable law for the winding up, dissolution or administration of the Pledgor.
|
3.4.4
|
No party enters into the Document or any transaction contemplated therein with bad faith or with the intention to prejudice, defraud or damage any creditor of the Pledgor.
|
4.1
|
The Document, if implemented in accordance with its terms and subject to the in rem prior pledge of the Account Bank (as defined in the Document) under its standard terms and conditions, validly creates the security interest described therein.
|
4.2
|
The obligations of the Pledgor under the Document are legal, valid, binding and enforceable in accordance with their terms.
|
4.3
|
The Document is in proper form for its enforcement in the German courts (except for the fact that it is written in a language other than the German language which will require an official translation to be obtained for enforcement purposes).
|
4.4
|
No consent, authorisation, license, or approval of governmental or public bodies in Germany is required with regard to the entry into and the performance of the Document by the parties thereto.
|
4.5
|
To ensure the validity, enforceability and admissibility in evidence of the Document, it is not necessary that it or any other instrument be notarised, filed, recorded, registered or enrolled in any court, public office or elsewhere in Germany.
|
5.1
|
General matters
|
5.1.1
|
We are lawyers admitted to practise in the Federal Republic of Germany. Therefore, this opinion is expressly limited to German law as applied by German courts and as it exists at the date hereof. It is given on the basis that it will be governed by and construed in accordance with German law. We have not examined any other laws and we do not express any opinion on such other laws. We have assumed, however, that there is no provision in such other laws which could affect this opinion.
|
5.1.2
|
This opinion is based on the facts existing on the date hereof of which we are aware and the opinions set forth herein shall not be deemed to relate to facts and conditions prevailing after the date hereof.
|
5.1.3
|
There is no final judicial precedent in Germany for holding facsimile or e-mail communications legal, valid and binding in all circumstances (in particular where there is a legal requirement for written form, a signature by way of a facsimile signing has been held insufficient to satisfy such requirement). However, where there are no particular legal requirements as to the form of such communication (unless the requirement of actual receipt has been validly waived), the German Federal Court of Justice (Bundesgerichtshof, the Supreme Court) has held that any facsimile communication received by the addressee will be deemed validly given (widerlegbare Vermutung).
|
5.1.4
|
The authenticity or completeness, and therefore the value as evidence, of any message or data in electronic form (even if saved on a medium of data storage) is in principle capable of being challenged as evidence in German courts on, inter alia, the grounds that:
|
|
(a) its content; and/or
|
|
(b) the sender; and/or
|
|
(c) the date and time of its issue,
|
|
may have been altered or manipulated and cannot be certified.
|
5.1.5
|
Any authorisation or instruction provided for in the Document may be revoked or terminated for important cause (aus wichtigem Grund) even if such authorisation or instruction has been made irrevocably. The same is true for any appointment of an agent under the Document.
|
5.1.6
|
Any provision in the Document providing that certain certifications or determinations will be conclusive, binding and authoritative will not necessarily prevent judicial enquiry into the merits of any claim by any aggrieved party.
|
5.1.7
|
Where contractual or legal consequences are attached to the occurrence or non-occurrence of an event a German court would have discretion to decide (upon evidence being brought to it) whether such event has occurred.
|
5.2
|
Enforceability, choice of law
|
5.2.1
|
The term “enforceable” or any other word of similar import, where used herein, means that the obligations assumed by any person expressed to be a party to the Document are of a type which the courts of the Federal Republic of Germany generally enforce, subject to and limited by the provisions of any applicable bankruptcy, insolvency, liquidation, reorganisation, moratorium or other laws of general application from time to time in effect relating to or affecting the creditors’ rights and remedies generally.
|
5.2.2
|
Any enforcement of the Document in the Federal Republic of Germany will be subject to the rules of civil procedure arising by operation of law as applied by German courts or other competent authority of the Federal Republic of Germany.
|
5.2.3
|
A German court might hold that any provision of the Document stating that any representation or communication shall be deemed to have been made or delivered is void or voidable.
|
5.2.4
|
Enforceability of contractual obligations can be affected by matters such as breach of contract or frustration (Unmöglichkeit). Claims may be subject to defences such as for instance set-off, rights of retention or estoppel.
|
5.2.5
|
The German law principle of Treu und Glauben requires that contracts are performed in good faith. For example, a German court may, in certain situations, regard the execution of contractual rights as untimely or abusive. Actions which have to be considered to constitute bad faith or which are contra bonos mores may provide certain rights in favour of a contracting party or may render contracts or commitments void or voidable.
|
5.2.6
|
Where a party under the Document is vested with discretion or may determine a matter in its opinion, such discretion must be exercised reasonably or such opinion must be based on reasonable grounds, in order for such discretionary decision or opinion to be binding on other parties.
|
5.2.7
|
Claims under the Document may become statutorily barred by limitation periods or under the doctrine of waiver (Verwirkung) or may become subject to set-off or counter-claims.
|
5.2.8
|
We express no opinion with respect to the enforceability and validity of provisions in the Document to the extent that they may provide for indemnification or reimbursement for losses caused by acts or omissions which the beneficiary of such provisions is directly or indirectly responsible for. This may constitute a violation of Section 254 of the Germany Civil Code (Bürgerliches Gesetzbuch, BGB) (contributory negligence) or Section 276 BGB (prohibition on limitations or exclusions of liability for one’s own wilful behaviour) and may not be enforced by a German court.
|
5.2.9
|
We express no opinion with respect to the limitations of a party’s set-off rights under the Document. Under German law, a right of set-off may be asserted notwithstanding an explicit waiver of such right, provided that the claim to be set-off has been recognised in a final and binding judgment or such claim is undisputed between the parties.
|
5.2.10
|
Provisions in the Document which provide that any determination, certificate or statement of account made or given by any party is to be final, conclusive or binding may not be enforced and will not prevent judicial enquiry into the merits of the matter and the basis on which such determination, certificate or statement of account is made.
|
5.2.11
|
We have not examined whether courts outside Germany may have jurisdiction regarding disputes arising in connection with the Document, nor do we express any opinion as to how such courts would construe and interpret the Document.
|
5.3
|
Priority of security, disposals by grantor of security, pledges
|
5.3.1
|
Pledges under the standard terms and conditions of the Account Bank (as defined in the Document) may rank prior to the pledges of bank accounts under the Document. However, in the acknowledgement to the notice to the Document, the Account Bank (as defined in the Document) undertakes that any rights of pledge under its standard terms and conditions are subordinated to the
|
|
pledges created under the Document. However, please note that such subordination agreement is of contractual nature only and does not change the ranking in rem.
|
5.3.2
|
The assets, claims and/or rights which are subject to a security created by the Document may consist of rights and/or claims against third parties which are subject to contractual or statutory provisions. To the extent they do, the security is subject to the terms of those rights and/or claims and may be subject to the rights and/or claims of those third parties (who may, for instance, have rights of set-off).
|
5.3.3
|
We did not carry out any due diligence investigations with regard to the assets, claims and rights to be transferred, assigned, pledged or otherwise encumbered under the Document. Therefore, no opinion is expressed herein as to the existence of or (unrestricted) title to any of the assets which serve as security under the Document or as to the priority of the security.
|
5.3.4
|
To the extent to which the Document secures the abstract acknowledgement provided for in the Document we note that the creation of an abstract (parallel) debt as basis for accessory security interests (akzessorische Sicherheiten) (such as pledges) has not been the subject of German court rulings. In this regard we have relied on general principles of German law on security interests.
|
5.3.5
|
Pledges of payment claims only become valid under German law if the pledgor in its capacity as creditor of the relevant claim gives notice to the debtor of the claim of the pledge and the identity of the pledge.
|
5.3.6
|
If the performance of an obligation of the Pledgor under or in connection with the Document is contrary to the exchange control regulation of a member state of the International Monetary Fund, that obligation might be unenforceable in the Federal Republic of Germany according to Article VIII Section 2(b) of the International Monetary Fund Agreement. In the case of unenforceability of an obligation, security interests which shall secure this obligation can be unenforceable as well. This is in particular true for accessory security interests (akzessorische Sicherheiten) such as the Document.
|
5.4
|
Security contra bonos mores, excessive security
|
5.4.1
|
The security created under the Document is not valid and enforceable if the granting of such security is “against good morals” (“gegen die guten Sitten”), Section 138 BGB. For example, this may be the case if the security recipient knew or should have known that the borrower for whose debts the security is created is not or will not be able to repay such debt, so that the enforcement of the security is already foreseeable at the time the security is granted and at the same time the security recipient knows or should have known that, as a result thereof, the claims of other third party creditors are jeopardised.
|
5.4.2
|
The granting of security might be against public morals if the grantor of security, due to the granting of several security interests, loses its capacity to (freely) run its business (Knebelung). From the face of the Document, we do not believe that such a situation is given in the matter at hand.
|
5.4.3
|
The Document can be void if it constitutes an initial over-collateralisation (anfängliche Übersicherung) which is so excessive that it must be considered as being “against good morals” (“gegen die guten Sitten”). If at the time of entering into a security agreement it is already certain that the realisable value of the security is significantly out of proportion to the claim secured, then there is a risk that the entire German security would be regarded as an initially excessive collateralisation. The German courts have not given any guidelines as to which loan to security ratio amounts to excessive collateralisation. A decision by the Supreme Court indicates that the loan-to-security ratio would be well beyond the threshold applied to subsequently excessive collateralisation, i.e. more than 150 per cent of the amount of the secured obligations. The actual valuation, however, will be based on the realisable value and therefore needs to take into account any possible discount on the current market value, arising, e.g. from the circumstances of a distress sale. In addition, the over-collateralisation, in order to be regarded as against good morals, must be based on a lender's reprehensible and condemnable state of mind (verwerfliche Gesinnung), which is assumed if a lender, out of self-interest, displays a morally unbearable recklessness as against a borrower.
|
6.1
|
This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters stated herein. In particular, this opinion does not cover any tax-related issues. We undertake no obligation to supplement or amend the opinion expressed herein based on facts, circumstances, or events which only come to our attention after the date hereof. For the purpose of rendering this opinion we have not conducted any investigation as to factual circumstances but have relied exclusively on the Document.
|
6.2
|
This opinion is solely for your benefit and each of your permitted successors and assignees during primary syndication in the next twelve (12) months from the date hereof in connection with the Document and the transactions contemplated thereby. This opinion is not intended to create third party rights pursuant to Section 328 et seq. BGB (Vertrag zugunsten Dritter oder Vertrag mit Schutzwirkung für Dritte) and may not be relied upon by anyone other than you and each of your permitted successors and assignees during primary syndication in the next twelve (12) months from the date hereof.
|
(a)
|
those persons (such as auditors or regulatory authorities) who, in the ordinary course of business of the Facility Agent and the Lenders, have access to their papers and records or are entitled by law to see them; and
|
(b)
|
those persons who are considering becoming Lenders,
|
6.4
|
This opinion and all non-contractual obligations arising out of or in connection with it are governed by and shall be construed in accordance with German law. Exclusive place of jurisdiction is Hamburg, Germany.
|
CLIFFORD CHANCE US LLP
31 WEST 52ND STREET
NEW YORK, NY 10019-6131
TEL +1 212 878 8000
FAX +1 212 878 8375
www.cliffordchance.com
|
|
1Insert prior to the date on which the Loan is made.
|
|
2Insert on and after the date on which the Loan is made.
|
a)
|
the Assignee
|
(i)
|
shall be deemed automatically to have become a party to the Agreement, have all the rights and obligations of a "Lender" under the Agreement and the other Loan Documents as if it were an original signatory thereto to the extent specified in the second paragraph hereof; and
|
(ii)
|
agrees to be bound by the terms and conditions set forth in the Agreement and the other Loan Documents as if it were an original signatory thereto; and
|
b)
|
the Assignor shall be released from its obligations under the Agreement and the other Loan Documents to the extent of the relevant percentage of the [Commitment][Loan] specified in the second paragraph hereof.
|
Amount
of the [Commitment]
[portion of the Loan]
after giving effect to
the assignment
contemplated hereby:
|
||||
[____]
|
[ASSIGNOR]
|
|||
By:
|
||||
Title:
|
||||
[____]
|
[ASSIGNEE]
|
|||
By:
|
||||
Title:
|
REFINANZIERUNGSVERTRAG
vom
zwischen der
KfW
Frankfurt am Main
vertreten durch die
KfW IPEX-Bank GmbH
Frankfurt am Main
("KfW")
und der
[Bank]
("Bank")
im Zusammenhang
mit der Finanzierung
[Bezeichnung des Schiffbauprojektes]
für [Besteller]
Zinsausgleichsgarantie Nr. [•]
|
REFINANCING AGREEMENT
dated
between
KfW
Frankfurt am Main
represented by
KfW IPEX-Bank GmbH
Frankfurt am Main
("KfW")
and
[Bank]
("Bank")
on the financing of
[description of delivery item]
for [buyer]
Interest Make-up Guarantee No .....
|
Übersicht
|
Overview
|
|||||||
1
|
Präambel
|
1
|
Preamble
|
3
|
||||
2
|
Daten des Bau- und Kreditvertrages, sowie der Refinanzierung
|
2
|
Shipbuilding Contract, Loan Agreement and Refinancing data
|
5
|
||||
3
|
Allgemeine Bedingungen
|
3
|
General Terms and Conditions
|
7
|
||||
4
|
Betrag und Verwendungszweck
|
4
|
Amount and purpose
|
7
|
||||
5
|
Auszahlung und Auszahlungsvoraussetzungen
|
5
|
Disbursement and conditions precedent to disbursement
|
8
|
||||
6
|
Zinsen, Gebühren und Berechnung
|
6
|
Interest, charges and calculation
|
9
|
||||
7
|
Rückzahlung und vorzeitige Rückzahlung; Anpassung des
Refinanzierungs-Zinssatzes
|
7
|
Repayment and prepayment; adjustment of the Refinancing Interest Rate
|
11
|
||||
8
|
Sicherheiten
|
8
|
Collateral
|
13
|
||||
9
|
Auskunftspflichten und Prüfungsrechte
|
9
|
Duty to inform and right to inspect
|
14
|
||||
10
|
Kündigung
|
10
|
Termination
|
14
|
||||
11
|
Erklärungen
|
11
|
Representations
|
15
|
||||
12
|
Sonstige Regelungen
|
12
|
Other regulations
|
15
|
||||
Anlage 1:
|
Abrufformular
|
Annex 1:
|
Disbursement Request Form
|
17
|
||||
Anlage 2:
|
Liste der subventionserheblichen Tatsachen für die Gewährung von Zinsausgleichsgarantien im Zusammenhang mit Absatzfinanzierungen für Schiffe
|
Annex 2
|
List of facts relevant to subsidies pertaining to the provision of Interest Make-up Guarantees in connection with ship financing at the CIRR
|
18
|
||||
Anlage 3:
|
Allgemeine Bedingungen für den Zinsausgleich bei chiffsfinanzierungen zum CIRR („AGB")
|
Annex 3
|
General Terms and Conditions for Interest Make-up in Ship Financing Schemes at the CIRR
|
19
|
1.
|
Präambel
|
1.
|
Preamble
|
|
Die Bundesrepublik Deutschland („Bund“), vertreten durch das Bundesministerium für Wirtschaft und Energie und das Bundesministerium der Finanzen, hat zur Unterstützung der Wettbewerbsfähigkeit deutscher Werften im Jahre 2008 das Schiffs-CIRR-Programm („Schiffs-CIRR-Programm“), ein Festsatz-Zinsausgleichssystem, eingeführt.
Der Bund gewährt Kreditinstituten für einen Teil des Zinsrisikos bei der Refinanzierung von CIRR-Krediten eine Zinsausgleichsgarantie („Zinsausgleichsgarantie“), die nach Maßgabe der „Richtlinien für die Übernahme von Gewährleistungen zur Absicherung des Zinsrisikos bei der Refinanzierung von CIRR-Krediten für den Bau von Schiffen (Zinsausgleichsgarantien)“ sowie der zugehörigen Allgemeinen Bedingungen für den Zinsausgleich bei Schiffsfinanzierungen zum CIRR („AGB“) abgewickelt wird.
Die KfW vertritt den Bund als Mandatar und hat ihrerseits die Marktfolge der KfW IPEX-Bank GmbH („IPEX“) mit der Abwicklung des Schiffs-CIRR-Programms beauftragt.
[Die Bank hat als Kreditgeber mit [Kreditnehmer] als Kreditnehmer am [Datum] einen Kreditvertrag abgeschlossen (nachfolgend inklusive Nachträge der „Kreditvertrag“) und dem Kreditnehmer den in Ziff. 2.2 näher bezeichneten Kredit über insgesamt [Kreditbetrag] („Kredit") eingeräumt. Der Kredit dient ausschließlich der Finanzierung des nachfolgend näher bezeichneten Schiffbauprojektes [Endfinanzierung].]
[bei Syndizierung: Am oder um den Tag dieses Vertrages tritt die Bank als neuer Kreditgeber [zusammen mit weiteren Banken] einem am [Datum] abgeschlossenen Kreditvertrag (nachfolgend inklusive Nachträge der „Kreditvertrag“) mit [Agenten] als Facility Agent und ursprünglichem Kreditgeber bei und gewährt dem Kreditnehmer ca. [prozentualer Anteil der Bank] % des in Ziffer 2.2 näher bezeichneten Kredites über insgesamt [Kreditbetrag] („Kredit“). Der Kredit dient ausschließlich der Finanzierung des nachfolgend näher bezeichneten Schiffbauprojektes [Endfinanzierung].]
|
The Federal Republic of Germany („Federal Republic“), represented by the Federal Ministry for Economic Affairs and Energy and by the Federal Ministry of Finance, implemented in 2008 the Shipping-CIRR programme (“Shipping-CIRR Programme”), an interest make-up scheme, to support the competitiveness of German yards.
The Federal Republic grants financial institutions an interest make-up guarantee to cover a portion of the interest rate risk involved in refinancing CIRR loans (“Interest Make-up Guarantee”), which is provided in accordance with the guidelines for the assumption of guarantees to hedge the interest rate risk associated with the refinancing of CIRR shipbuilding loans (interest make up guarantees) and with the related general terms and conditions for interest rate make-up in ship financing schemes at the CIRR (“General Terms”).
KfW is acting as mandatary of the Federal Republic and has for its part assigned the back offices of KfW IPEX-Bank GmbH (“IPEX”) to handle the Shipping-CIRR Programme.
[The Bank, as lender, entered into a loan agreement with [borrower] as borrower as at [date] (hereinafter, including addenda the “Loan Agreement”) and granted the borrower the loan described in more detail in Section 2.2 for a total of [loan amount] (“Loan”). The sole purpose of this Loan is to finance the shipbuilding project described in more detail below [post-delivery financing].]
[in case of syndication: On or about the date thereof, the Bank will accede as new lender [together with other banks] to a loan agreement dated [date] with [agent] being the facility agent and the original lender (hereinafter, including addenda, the “Loan Agreement”) and will grant the borrower approximately [percentage of bank] per cent of the loan described in more detail in Section 2.2 for a total of [loan amount] (“Loan”). The sole purpose of this Loan is to finance the shipbuilding project described in more detail below [post-delivery financing].]
|
[Der Kredit ist unter anderem besichert durch eine Finanzkreditdeckung der Bundesrepublik Deutschland („Hermes-Deckung“)[weitere Sicherheiten]].
Im Rahmen des Schiffs-CIRR-Programms besteht für finanzierende Banken die Möglichkeit eine Refinanzierung durch die KfW zu beantragen. Die Bank hat sich nach Maßgabe von Ziff. 1.2.1. der AGB für diese Refinanzierung entschieden.
Auf dieser Grundlage vereinbaren die Bank und die KfW folgendes:
|
[The Loan will be – inter alia – secured by a Finance Credit Cover of the Federal Republic of Germany (“Hermes Cover”) [further securities].]
Under the Shipping-CIRR Programme financial institutions may request a refinancing by KfW. In accordance with Section 1.2.1. of the General Terms the Bank decided for this refinancing.
On this basis the Bank and KfW hereby agree as follows:
|
2 |
Daten des Schiffbau- und Kreditvertrages sowie der Refinanzierung
|
2 |
Shipbuilding Contract, Loan Agreement and Refinancing data
|
|
2.1 |
Daten des Schiffbauvertrages
|
2.1 |
Shipbuilding Contract data
|
|
2.1.1
|
Verkäufer / Schiffbauunternehmen:
|
2.1.1
|
Seller / Shipbuilder:
|
|
2.1.2
|
Datum des Bauvertrages:
|
2.1.2
|
Date of the Shipbuilding Contract:
|
|
2.1.3
|
Auftragswert:
|
2.1.3
|
Contract Value:
|
|
2.1.4
|
Zahlungsbedingungen:
|
2.1.4
|
Payment Terms:
|
|
2.1.5
|
Käufer / Besteller:
|
2.1.5
|
Customer / Buyer:
|
|
2.1.6
|
Schiffbauprojekt:
|
2.1.6
|
Object of the Shipbuilding Contract:
|
|
2.1.7
|
Voraussichtliche Ablieferung:
|
2.1.7
|
Scheduled Date of Delivery:
|
2.2
|
Daten des Kreditvertrages
|
2.2
|
Loan Agreement data:
|
|
2.2.1
|
Kreditnehmer:
|
2.2.1
|
Borrower:
|
|
2.2.2
|
Kreditwährung:
|
2.2.2
|
Loan Currency:
|
|
2.2.3
|
Finanzierungsstruktur:
|
2.2.3
|
Financing Structure:
|
|
2.2.4
|
Kreditbetrag:
|
2.2.4
|
Loan Amount:
|
|
2.2.5
|
Auszahlungsprofil:
|
2.2.5
|
Disbursement Profile:
|
|
2.2.6
|
Ende der Auszahlungsfrist:
|
2.2.6
|
End of the Disbursement Period:
|
|
2.2.7
|
Kreditlaufzeit / Tilgungsprofil:
|
2.2.7
|
Loan Term / Repayment Profile:
|
|
2.2.8
|
Fälligkeit und Kalkulationsbasis der Zinsen: 1
|
2.2.8
|
Maturity and calculation basis of the Interest2:
|
|
2.3
|
Daten der Zinsausgleichsgarantie und der Refinanzierung
|
2.3
|
Interest Make-up Guarantee and Refinancing data
|
|
2.3.1
|
Maßgeblicher CIRR-Satz:
|
2.3.1
|
Applicable CIRR rate:
|
|
2.3.2
|
Verwaltungskostenpauschale („VWK“):
|
2.3.2
|
Fee for Administrative Expenses (“VWK”):
|
|
2.3.3
|
Marge der KfW (gem. Ziffer 1.2.1.2. Satz 2 AGB) („KfW–Marge“):
|
2.3.3
|
Margin of KfW (pursuant to section 1.2.1.2. sentence 2 General Terms) („KfW Margin“):
|
|
2.3.4
|
Refinanzierungs-Zinssatz (=Maßgeblicher CIRR-Satz abzüglich VWK zzgl. KfW-Marge):
[•] % p.a.
|
2.3.4
|
Refinancing Interest Rate (Applicable CIRR-rate less VWK plus KfW-Margin):
[•] % p.a.
|
|
2.3.5
|
Datum des Antrages der Bank auf Zinsausgleichsgarantie:
|
2.3.5
|
Date of application by the Bank for the Interest Make-up Guarantee:
|
|
2.3.6
|
Spätesttermin gemäß Ziffer 7.2. AGB:
|
2.3.6
|
Latest Date pursuant to section 7.2. General Terms:
|
3
|
Allgemeine Bedingungen
|
3
|
General Terms and Conditions
|
|
Sofern in diesem Vertrag keine anders lautenden Bestimmungen enthalten sind, gelten die als Anlage 3 beigefügten AGB. Mit der Geltung der AGB erklärt sich die Bank mit Unterzeichnung dieses Vertrages ausdrücklich einverstanden. Die Bank hat auch zur Kenntnis genommen, dass der Zinsausgleich der Höhe nach auf maximal 12 % jährlich begrenzt ist (Ziff. 1.1. Satz 4 AGB) und die Bank verpflichtet ist, der KfW etwaige diesen Höchstbetrag übersteigende Zinsdifferenzen zu erstatten.
Änderungen und Ergänzungen dieses Vertrages sowie Erklärungen und Mitteilungen aufgrund dieses Vertrages bedürfen der Schriftform.
|
Insofar as this refinancing agreement (“Agreement”) does not contain any provisions stating otherwise, the General Terms (attached as Annex 3) will apply. By signing this Agreement the Bank expressly declares its consent to the validity of the General Terms. The Bank has also taken note of the fact that the Interest Make-up is limited to a maximum rate of 12 % p.a. (Section 1.1. sentence 4 of the General Terms) and that the Bank is obligated to reimburse to KfW any differences in interest rates beyond this maximum limit.
Amendments or addenda to this Agreement and any statements and notices delivered under this Agreement must be in writing.
|
|||
4
|
Betrag und Verwendungszweck
|
4
|
Amount and purpose
|
|
4.1
|
Die KfW räumt der Bank einen Refinanzierungskredit („Refinanzierungskredit“) in Höhe des Kreditbetrages gem. Ziff. 2.2.4 ein. Inanspruchnahmen unter dem Refinanzierungskredit dienen der Refinanzierung des unter Ziff. 2.2 genannten Kreditvertrages der Bank, den diese an den Kreditnehmer herauslegt und für den im Rahmen des Schiffs-CIRR-Programms eine Garantie übernommen wurde.
|
4.1
|
KfW grants the Bank a refinancing loan (“Refinancing Loan”) in an amount equal to the Loan Amount stated in Section 2.2.4. The funds utilized under the Refinancing Loan serve to refinance the Bank`s Loan Agreement stated in Section 2.2, which the Bank concluded with the Borrower and for which a guarantee has been issued under the Shipping-CIRR Programme.
|
|
4.2
|
Die Bank verwaltet ihren Kredit einschließlich aller Sicherheiten auf eigene Kosten und im eigenen Namen. Bei der Kreditvergabe und Kreditverwaltung einschließlich Einziehung der Kreditforderungen und bei der Sicherheitenverwaltung und –verwertung einschließlich der Wahrnehmung der Rechte, Pflichten und Obliegenheiten aus Exportkreditversicherungen des Bundes handelt die Bank mit banküblicher Sorgfalt. [Die Weisungen des Bundes und die Bedingungen der Hermes-Deckung wird die Bank beachten.]
|
4.2
|
The Bank administers its Loan including all collateral at own expense and on its own behalf. In granting and administering the Loan, including the collection of loan receivables, and in administering and enforcing collateral, including the exercise of rights, obligations and responsibilities in connection with the Federal Republic`s export credit insurance scheme, the Bank will act with the care customary in banking practice. [The Bank will comply with the instructions of the Federal Republic and the conditions of the Hermes Cover.]
|
5
|
Auszahlung und Auszahlungsvoraussetzungen
|
5
|
Disbursement and conditions precedent to
disbursement
|
|||
5.1
|
Die Bank prüft die Erfüllung der Auszahlungsvoraussetzungen unter dem Kreditvertrag und wird der KfW mit Abruf des Refinanzierungskredits schriftlich bestätigen, dass die Auszahlungsvoraussetzungen gemäß Kreditvertrag erfüllt sind und eine Auszahlungsanforderung in entsprechender Höhe unter dem Kreditvertrag vorliegt
|
5.1
|
The Bank will verify the fulfilment of the conditions precedent to disbursement under the Loan Agreement and, upon disbursement of the Refinancing Loan, will provide KfW with a written confirmation that said conditions precedent have been fulfilled in accordance with the Loan Agreement and that a request for disbursement under the Loan Agreement has been submitted in the corresponding amount.
|
|||
5.2
|
Der Abruf gemäß Anlage 1 ist mindestens zwei Bankarbeitstage vor dem angestrebten Auszahlungstermin bei der KfW einzureichen.
|
5.2
|
The request for disbursement stated in Annex 1 must be submitted to KfW at least two Business Days prior to the disbursement date
|
|||
5.3
|
Die Bank wird die Auszahlungen unter dem Refinanzierungskredit unverzüglich an den Kreditnehmer oder das Schiffbauunternehmen weiterleiten.
|
5.3
|
The Bank will transfer the disbursements made under the Refinancing Loan to the Borrower or the Shipbuilder without delay
|
|||
5.4
|
Auszahlungen aus dem Refinanzierungskredit werden in der Kreditwährung gem. Ziff. 2.2.23geleistet.
|
5.4
|
Disbursements made under the Refinancing Loan will be rendered in the Loan Currency as stated in Section 2.2.26
|
|||
5.5
|
Unbeschadet der Bestimmungen der AGB (Ziff. 10.) kann die KfW die Auszahlung verweigern, wenn
|
5.5
|
Notwithstanding the provisions of the General Terms (Section 10.) KfW may refuse disbursement if
|
|||
5.5.1
|
der Betrag des Refinanzierungskredits durch die Auszahlung überschritten würde,
|
5.5.1
|
the amount of the Refinancing Loan would be exceeded as a result of the disbursement;
|
|||
5.5.2
|
das entsprechende Abrufformular nicht mindestens zwei Bankarbeitstage vor dem gewünschten Auszahlungstermin vollständig ausgefüllt und rechtsgültig unterzeichnet bei der KfW vorliegt,
|
5.5.2
|
the corresponding disbursement request form has not been fully completed and duly signed and submitted to KfW at least two Business Days prior to the desired disbursement date;
|
|||
5.5.3
|
Zahlungen der Bank an die KfW unter diesem Vertrag ausstehen und hierfür technische Ursachen nicht erkennbar sind,
|
5.5.3
|
payments owed by the Bank to KfW under this Agreement are outstanding and technical reasons for such non-payment are not identifiable;
|
|||
5.5.4
|
ein außerordentlicher Kündigungsgrund (gem. Ziff. 10) vorliegt,
|
5.5.4
|
there are extraordinary grounds for termination (as stated in Section 10);
|
5.5.5.
|
die gem. Ziff. 8.1 bereitzustellenden Sicherheiten nicht in einer der KfW genehmen Form rechtswirksam bestellt wurden und
|
5.5.5.
|
the collateral to be made available to KfW pursuant to Section 8.1 has not been furnished in a legally effective manner and form satisfactory to KfW and
|
||||
5.5.6.
|
der KfW keine zufrieden stellenden Nachweise über den rechtswirksamen Abschluss dieser Refinanzierungs-vereinbarung und der gem. Ziff. 8.1 abzuschließenden Sicherheitenverträge zur Verfügung gestellt wurden. Zufriedenstellende Nachweise der wirksamen Sicherheitenbestellung sind a) sofern die Sicherheiten ausländischem Recht unterliegen, zufriedenstellende Rechtsgutachten (legal opinions) zu den betreffenden Rechtsordnungen, b) Vorlage der unterzeichneten Sicherheitenverträge, c) Vorlage von zufriedenstellenden Vertretungsnachweisen durch entsprechende Rechtsgutachten (oder gleichwertige Nachweise) für die diese Verträge unterzeichnenden Personen, d) zufriedenstellendes Rechtsgutachten zu der Rechtsordnung, in der die Bank ihren Sitz hat, im Hinblick auf insolvenzrechtliche Fragestellungen im Zusammenhang mit dem Sicherungsgut sowie e) weitere Nachweise (z. B. Registerauszüge).
|
5.5.6.
|
KfW has not been provided with satisfactory evidence of the legally valid and effective conclusion of this agreement and the collateral agreements to be entered into pursuant to Section 8.1. Satisfactory evidence of the legally valid and effective conclusion of the collateral agreements is a) satisfactory legal opinions with respect to the relevant jurisdictions if the collateral is subject to foreign law, b) submission of the signed collateral agreements, c) submission of satisfactory evidence by way of legal opinion (or equivalent evidence) of signatory power of the persons signing these agreements, d) satisfactory legal opinion as to the law of incorporation of the Bank with respect to insolvency related matters on the collateral and e) further evidence (e.g. excerpts from registers).
|
||||
6
|
Zinsen, Gebühren und Berechnung
|
6
|
Interest, charges and calculation
|
||||
Zusätzlich zu den in den AGB (Ziff. 7. [und 4.6.3.]) vorgesehenen Gebühren und Entgelte für die Gewährung der Zinsausgleichsgarantie werden für den Refinanzierungskredit folgende Kosten geltend gemacht:
|
In addition to the charges and fees provided for in the General Terms (Section 7. [and 4.6.3.]) in connection with the granting of the Interest Make-up Guarantee, the following costs will be due and payable for the Refinancing Loan:
|
||||||
6.1
|
Zinsen für Darlehensbeträge unter diesem Refinanzierungskredit werden vom Tage der Auszahlung bis zum Tage der Gutschrift der Rückzahlungsrate auf dem in Ziff. 7.2 dieses Vertrages angegebenen Konto berechnet.
|
6.1
|
Interest for loan amounts under this Refinancing Loan will be calculated from the disbursement date until the date on which the repayment instalment is credited to the account stated in Section 7.2 of this Agreement.
|
||||
6.2
|
Als Zinssatz gilt der Refinanzierungs-Zinssatz gem. Ziff. 2.3.4. Die Zinsen sind an den in Ziff. 2.2.8 genannten Terminen („Zinstermine“) zur
|
6.2
|
The Refinancing Interest Rate stated in Section 2.3.4 will be applied as the interest rate. Interest
|
Zahlung fällig
|
will be due for payment on the dates ("Interest Payment Dates") stated in Section 2.2.8.
|
|||
6.3
|
Für in Anspruch genommene Darlehensbeträge wird das Jahr mit 360 Tagen und der Monat mit der Zahl der tatsächlich anfallenden Tage angesetzt
|
6.3
|
Disbursed loan amounts will be computed on the basis of a 360-day year and the actual number of days elapsed in a month.
|
|
6.4
|
Die Bank zahlt der KfW eine Zusageprovision in Höhe von [•] % jährlich auf den nicht ausgezahlten Betrag des Refinanzierungskredits („KfW-Zusageprovision“). Die KfW-Zusageprovision wird für den Zeitraum zwischen der Unterzeichnung dieses Refinanzierungs-vertrags und der Auszahlung berechnet und ist [Periode gemäß Kreditvertrag] nachträglich zahlbar. Für den Fall, dass der Gesamtbetrag der von der Bank unter dem Kreditvertrag vereinbarten Zusageprovision die KfW-Zusageprovision um mehr als das Doppelte übersteigt, hat die Bank anstatt der KfW-Zusageprovision die Hälfte der vertraglich vereinbarten Zusageprovision an die KfW abzuführen. Die Zahlung der KfW-Zusageprovision erfolgt grundsätzlich an den unter dem Kreditvertrag vereinbarten Fälligkeitsterminen. Die Zahlungspflichten der Bank unter dieser Ziffer 6.4 bestehen unabhängig von einem Zahlungseingang seitens des Kreditnehmers.
|
6.4
|
The Bank will pay KfW a commitment fee at a rate of [•] % per annum on the undisbursed amount of the Refinancing Loan (“KfW Commitment Fee”). The KfW Commitment Fee will be calculated for the period between signing of this Agreement and the disbursement and is payable [period according to Loan Agreement] in arrears. If the total amount of the commitment fee agreed by the Bank under the Loan Agreement exceeds the KfW Commitment Fee by more than double, the Bank will not pay the KfW Commitment Fee to KfW but rather half of the contractually agreed commitment fee. The payment will be principally made to KfW on the due dates agreed under the Loan Agreement. The payment obligations of the Bank under this Section 6.4 continue irrespective of receipt of payment from the Borrower.
|
|
6.5
|
Steuern, Gebühren, Kosten und Aufwendungen (einschließlich anwaltlicher Gebühren und Auslagen), die aus oder im Zusammenhang mit der Vorbereitung, Verhandlung, Unterzeichnung, Registrierung, Durchführung, Änderung, Bewahrung oder Durchsetzung des Refinanzierungsvertrages oder sowie der sich daraus ergebenden Rechte oder eines Sicherheitenvertrages oder anderer dazugehörigen Dokumente anfallen, sind von der Bank zu tragen. Wenn solche Steuern, Gebühren, Kosten oder Aufwendungen von der KfW bezahlt wurden, soll die Bank der KfW unverzüglich nach entsprechender Aufforderung solche Zahlungen rückerstatten.
|
6.5
|
All taxes, fees, costs and expenses (including legal fees and expenses) arising out of or in connection with the preparation, negotiation, execution, registration, implementation, modification, preservation or enforcement of this Refinancing Agreement, the rights hereunder, or any security or document or other document pertaining hereto shall be borne by the Bank. If any such taxes, fees, costs or expenses are paid by KfW, the Bank shall promptly on demand reimburse to KfW.
|
|
6.6
|
Werden Zahlungen für Beträge unter dem Refinanzierungskredit an einem Tag fällig, der
|
6.6
|
If payments of amounts payable under the Refinancing Loan fall due on a day that is not a banking day in Frankfurt am Main [and] [in the event of foreign currency please include city in which the foreign currency account is kept], payment must be rendered on the ensuing banking day in Frankfurt am Main [or] [in the event of foreign currency please include city in which the foreign currency account is kept], (“Business Day”) unless said day falls in the next calendar month. In the latter case the payment
|
kein Bankarbeitstag in Frankfurt am Main oder [im Falle von Fremdwährungen Ort(e) ergänzen] ist, so hat die Zahlung an dem nächsten Bankarbeitstag in Frankfurt am Main und [im Falle von Fremdwährungen Ort(e) ergänzen] zu erfolgen, es sei denn, dieser Tag fällt in den nächsten Kalendermonat. Im letzteren Fall ist die Zahlung am letzten Bankarbeitstag vor dem Fälligkeitstag zu leisten.
|
must be rendered on the latest Business Day prior to the due date.
|
|||||
7
|
Rückzahlung und vorzeitige Rückzahlung; Anpassung des Refinanzierungs-Zinssatzes
|
7
|
Repayment and prepayment; adjustment of the Refinancing Interest Rate
|
|||
7.1
|
Die Bank ist unabhängig von Zahlungen unter dem Kreditvertrag zur Rückzahlung des Refinanzierungskredits nach folgendem Tilgungsplan verpflichtet
|
7.1
|
Regardless of any payments made under the Loan Agreement the Bank undertakes to repay the Refinancing Loan in accordance with the following repayment schedule:
|
|||
Datum4:
|
Betrag:
|
Date7:
|
Amount:
|
|||
7.2
|
Die Bank ist von ihren Zahlungsverpflichtungen aus diesem Vertrag frei, sobald und soweit die betreffenden Beträge in der vereinbarten Währung der KfW ohne Abzüge frei auf ihrem jeweils angegebenen Konto Nr. [Bankverbindung eintragen] zur Verfügung stehen. Sämtliche durch verspäteten Eingang von Zahlungen der KfW entstandene Kosten erstattet die Bank der KfW auf erste Anforderung.
|
7.2
|
The Bank is released from its payment obligations under this Agreement as soon and insofar as the relevant amounts have been made freely available to KfW in the agreed currency without any deductions in the corresponding stated account number [include account details]. The Bank must, upon KfW´s first request, reimburse KfW for any and all costs it incurs owing to late payments
|
|||
7.3
|
Gehen die von der Bank zu zahlenden Beträge nicht valutagerecht ein, so kann die KfW gegenüber der Bank Verzugszinsen in Höhe von 3 % p.a. über dem jeweiligen 3-Monats-EURIBOR/LIBOR gemäß der Reuters-Seiten EURIBOR01/LIBOR01 ab Fälligkeitstermin der jeweiligen Forderung geltend machen. Die Bank wird die Verzugszinsen auf erste Anforderung zahlen.
|
7.3
|
If the payments payable by the Bank are not rendered as at the correct value date, KfW may charge the Bank default interest amounting to 3% p.a above the prevailing 3-month EURIBOR/LIBOR quoted on Reuters Pages EURIBOR01/LIBOR01 starting from the respective payment due date. The Bank undertakes to pay the default interest upon KfW's first request.
|
|||
7.4
|
Sofern die Bank von ihrem Recht zur Rückgabe der Zinsausgleichsgarantie gemäß Ziffer 8.1. der
|
7.4
|
Provided the Bank exercises its right to return the Interest Make-up Guarantee pursuant to Section
|
AGB Gebrauch macht, ist sie zur vorzeitigen Rückzahlung des Refinanzierungskredits berechtigt. Die KfW behält sich jedoch die Geltendmachung von Refinanzierungsschäden, die durch die vorzeitige Rückzahlung ausgelöst werden, vor. Gesetzliche Kündigungsrechte bleiben hiervon unberührt. Wenn die Bank gemäß Ziffer 8.2. der AGB die Rückgabe auf die Garantie beschränkt, so läuft die Refinanzierung unter dieser Vereinbarung grundsätzlich weiter. Die Verpflichtung zur Zahlung einer Nichtabnahmeentschädigung an den Bund gemäß Ziffer 8.3. der AGB wird durch die Regelung dieser Ziffer 7.4 nicht berührt.
|
8.1. of the General Terms, the Bank is entitled to prepay the Refinancing Loan. However, KfW reserves the right to claim funding losses caused by such prepayment. Statutory rights of termination will remain unaffected thereby. If the Bank limits the termination to the Guarantee pursuant to Section 8.2. of the General Terms, the Refinancing Loan as agreed herein will in principle continue. The obligation to pay non-acceptance compensation to the Federal Republic pursuant to Section 8.3. of the General Terms will not be affected by the provision of this Section 7.4.
|
|||
7.5
|
Unabhängig davon, ob die Bank Rechte nach Ziffer 8.1. oder 8.2. der AGB ausgeübt hat oder nicht, gilt für die Weiterleitung von vorzeitigen Rückzahlungen unter dem Kreditvertrag und Verwertungserlösen folgendes: Die Bank wird alle vorzeitigen Rückzahlungen oder Verwertungserlöse aus Sicherheiten unverzüglich nach Eingang an die KfW weiterleiten, solange die KfW Ansprüche aus dieser Vereinbarung geltend machen kann. Diese Weiterleitungspflicht besteht unabhängig von geleisteten bzw. zu leistenden Zahlungen der Bank gemäß dem ursprünglichen Tilgungsplan nach Ziffer 7.1 dieser Vereinbarung. Sie besteht auch unabhängig von dem Grund für den Zahlungseingang. Eingehende Zahlungen unter dieser Ziffer 7.5 werden in umgekehrter zeitlicher Reihenfolge angerechnet und der Tilgungsplan für die turnusmäßigen Zahlungen der Bank nach Ziffer 7.1 entsprechend angepasst.
|
7.5
|
Notwithstanding whether the Bank has or has not exercised rights pursuant to Sections 8.1. or 8.2. of the General Terms, the following applies to the transfer of prepaid amounts under the Loan Agreement and collateral realisation proceeds: The Bank will transfer all prepaid amounts or collateral realisation proceeds to KfW immediately upon receipt if and insofar as KfW can assert claims under this Agreement. This transfer obligation will exist regardless of any payments rendered or to be rendered by the Bank in accordance with the original repayment schedule as stated in Section 7.1 of this Agreement. The obligation also exists regardless of the grounds for receipt of such payment. Incoming payments that fall under this Section 7.5 will be taken into account in inverse chronological order and the repayment schedule will be adjusted accordingly pursuant to Section 7.1 to account for regular payments by the Bank.
|
|
7.6
|
Macht die Bank von ihrem Recht gemäß Ziff. 8.2. der AGB Gebrauch, so ist der Refinanzierungs-Zinssatz nach Ziff. 2.3.4 dieses Vertrags zum Ende der auslaufenden Zinsausgleichsperiode entsprechend anzupassen. Der in diesem Fall anzuwendende Refinanzierungs-Zinssatz entspricht dann dem 3- bzw. 6-Monats-Libor/Euribor5 gemäß der Reuters-Seiten EURIBOR01/LIBOR01 zuzüglich der KfW-Marge
|
7.6
|
If the Bank exercises its right pursuant to Section 8.2. of the General Terms, the Refinancing Interest Rate as stated in Section 2.3.4 of this Agreement must be adjusted accordingly as at the end of the expiring interest make-up period. The Refinancing Interest Rate to be applied in such an event will correspond to the 3-month or 6-month EURIBOR/LIBOR8 quoted on Reuter Pages EURIBOR01/LIBOR01 plus the KfW
|
gem. Ziffer 2.3.3.
|
Margin pursuant to Section 2.3.3
|
|||||
7.7
|
Bei vorzeitiger Beendigung der Kreditvertrages werden die Bank und die KfW in Gespräche darüber eintreten, ob (i) der Refinanzierungskredit fortgeführt wird und (ii) eine weitere Anpassung des Refinanzierungs-Zinssatzes gem. Ziffer 7.6 erforderlich ist.
|
7.7
|
In case of early termination of the Loan Agreement, the Bank and KfW will enter into discussions on whether (i) the Refinancing Loan will be continued and (ii) a further adjustment of the Refinancing Interest Rate pursuant to Section 7.6 is necessary.
|
|||
8
|
Sicherheiten
|
8
|
Collateral
|
|||
8.1
|
Vor der Auszahlung stellt die Bank der KfW zur Sicherung ihrer Ansprüche unter diesem Refinanzierungsvertrag die folgenden Sicherheiten:
|
8.1
|
Prior to disbursement, the Bank will provide to KfW the following collateral to secure KfW's interests under this Agreement:
|
|||
8.1.1
|
Abtretung sämtlicher Ansprüche der Bank gegen den Kreditnehmer aus dem Kreditvertrag [und der/den erstrangigen Schiffshypothek/en];
|
8.1.1
|
Assignment of the Bank’s rights against the Borrower under the Loan Agreement [and the first ranking ship mortgage(s)];
|
|||
8.1.2
|
[Abtretung der Ansprüche der Bank aus der Hermes-Deckung];
|
8.1.2
|
[Assignment of the Bank’s rights under the Hermes Cover];
|
|||
8.1.3
|
[ggf. Abtretung weiterer Sicherheiten].
|
8.1.3
|
[Assignment of further collateral as appropriate].
|
|||
Die KfW ist berechtigt, bei der Hereinnahme der o.g. Sicherheiten die Unterstützung externer Rechtsberater in Anspruch zu nehmen. Die Kosten hierfür sowie sonstige Kosten der Sicherheitenbestellung sind von der Bank zu tragen.
|
In taking the above collateral, KfW may resort to the support of external legal advisers. The cost of this as well as any other costs associated with the perfection of any such collateral will be borne by the Bank.
|
|||||
8.2
|
[Die KfW ist berechtigt, zur Absicherung ihrer Forderungen unter dem Refinanzierungskredit nach Maßgabe ihrer Kriterien für durchleitende Banken im inländischen Fördergeschäft zusätzliche Sicherheiten zu verlangen, sofern dies nach ihrer Einschätzung erforderlich wird. Dies kann auch nachträglich geschehen.
|
8.2
|
[In order to secure its claims under the Refinancing Loan, KfW is entitled to demand additional collateral in accordance with its criteria for on-lending banks in domestic lending business insofar as KfW deems this necessary. This may also take place retroactively.
|
|||
8.3
|
Die unter Ziffer 8.2 genannten zusätzlichen Sicherheiten, insbesondere Pfandrechte, Sicherungsübereignungen, sofern sie nicht per Gesetz auf die KfW übergehen, und solche Sicherheiten, aus denen Ansprüche nicht abgetreten werden können, hält die Bank, soweit sie die Ansprüche aus dem Kreditvertrag sichern, auf eigene Kosten treuhänderisch für die KfW. Die KfW ist jederzeit
|
8.3
|
The Bank holds the additional collateral specified under Section 8.2, in particular pledges, liens, fiduciary transfers of assets - insofar as they are not transferred to KfW by law - and such collateral for which claims cannot be assigned, in trust for KfW at its own expense insofar as the collateral serves to secure claims under the Loan Agreement. KfW is entitled at any time to issue instructions regarding the assets being held in trust. Upon KfW's request, the Bank will provide KfW with disclosure and information of all kinds
|
befugt, im Hinblick auf das Treugut Weisungen zu erteilen. Die Bank wird der KfW auf Verlangen Auskunft und Informationen jeglicher Art über die Sicherheiten geben.]
|
concerning said collateral.]
|
|||
9
|
Auskunftspflichten und Prüfungsrechte
|
9
|
Duty to inform and right to inspect
|
|
Zusätzlich zu den Pflichten der Bank aus Ziffer 11. der AGB gelten folgende Bestimmungen:
|
In addition to the Bank's obligations as stated in Section 11. of the General Terms the following provisions will apply:
|
|||
9.1
|
Die Bank wird der KfW regelmäßig Auskunft über Umstände erteilen, die den Kredit, dessen ordnungsgemäße Rückzahlung oder Besicherung betreffen. Außergewöhnliche Ereignisse, welche die ordnungsgemäße Bedienung des Kredites gefährden können und der Bank bekannt werden, wird die Bank der KfW unaufgefordert unverzüglich mitteilen.
|
9.1
|
The Bank will regularly inform KfW of circumstances pertaining to the Loan, its proper repayment or collateralisation. The Bank must inform KfW immediately and of its own accord about extraordinary events of which it becomes aware that may jeopardise the proper servicing of the Loan.
|
|
9.2
|
Die Bank wird die KfW über alle Änderungen und Ergänzungen des Kreditvertrages unverzüglich informieren.
|
9.2
|
The Bank will notify KfW immediately of all amendments and addenda to the Loan Agreement.
|
|
9.3
|
Die Bank ist verpflichtet, den Kreditnehmer über diesen Vertrag mit der KfW zu informieren.
|
9.3
|
The Bank undertakes to inform the Borrower about this Agreement with KfW.
|
|
9.4
|
Die KfW ist berechtigt, bei der Bank die Verwendung der Refinanzierungen zu prüfen, von der Bank entsprechende Auskünfte zu verlangen und Einblick in die betreffenden Unterlagen zu nehmen.
|
9.4
|
KfW is entitled to inspect the proper use of the refinancing funds at the Bank, to request corresponding information from the Bank and to inspect the loan documents.
|
|
9.5
|
Die Bank übersendet der KfW nach Feststellung, spätestens sechs Monate nach Ablauf des Geschäftsjahres, ihren bestätigten Geschäftsbericht nebst Anhang, Lagebericht und Erläuterungen.
|
9.5
|
The Bank will send KfW its certified annual report including the annex, the management report and the notes following its completion but not later than six months after the end of its financial year.
|
|
10
|
Kündigung
|
10
|
Termination
|
|
Die KfW kann diesen Vertrag unbeschadet der Bestimmungen der AGB aus wichtigem Grunde kündigen, insbesondere wegen
|
Notwithstanding the provisions of the General Terms, KfW may terminate this Agreement for good cause, particularly in the event of -
|
|||
10.1
|
einer erheblichen Verschlechterung der wirtschaftlichen Verhältnisse der Bank;
|
10.1
|
a significant deterioration in the Bank's financial situation;
|
|
10.2
|
einer Verletzung der Zahlungspflichten der Bank (es sei denn, diese basiert auf technischen Problemen im Zahlungsverkehr) oder von
|
10.2
|
a breach of the Bank's payment obligations (unless said breach is attributable to technical problems in payment processing) or duties to
|
Informationspflichten;
|
inform;
|
|||
10.3
|
einer in sonstiger Weise erheblichen Störung der für die Fortführung des Vertragsverhältnisses vorauszusetzenden Vertrauensbeziehung.
|
10.3
|
a disruption in the relationship of trust required for the continuation of the contractual relationship that is significant for another reason.
|
|
11
|
Erklärungen
|
11
|
Representations
|
|
Mit Unterzeichnung versichert die Bank, dass
|
By signing this Agreement, the Bank assures that -
|
|||
a)
|
im Kreditvertrag mindestens der maßgebliche CIRR als Kreditzins vereinbart wurde und
|
a)
|
in the Loan Agreement the Applicable CIRR rate was agreed to be the minimum interest rate and
|
|
b)
|
sie davon Kenntnis genommen hat, dass Tatsachen, von denen die Bewilligung, Gewährung, Rückforderung, Weitergewährung oder das Belassen der Zinsausgleichsgarantie bzw. hieraus ausgezahlter Beträge abhängig ist, subventionserhebliche Tatsachen im Sinne des § 264 StGB sind. Diese Tatsachen sind in der Anlage 2 bezeichnet. Auf die Bestimmungen der §§ 3, 4 und 5 Subventionsgesetz wird besonders hingewiesen.
|
b)
|
it is aware that facts on which the approval, grant, reclamation, renewal or continuation of the Interest Make-up Guarantee and amounts paid under the Interest Make-up Guarantee (as the case may be), depend qualify as facts that are relevant to subsidies within the meaning of Section 264 of the German Criminal Code (Strafgesetzbuch/StGB). These facts are listed in Annex 2. Particular reference is made to the provisions set forth in Sections 3, 4 and 5 of the German Subsidy Act (Subventionsgesetz/SubvG).
|
|
12
|
Sonstige Regelungen
|
12
|
Other regulations
|
|
12.1
|
Dieser Vertrag tritt mit Unterzeichnung in Kraft und endet mit vollständiger Rückzahlung des Refinanzierungskredits einschließlich einer gegebenenfalls erforderlichen Sicherheitenverwertung.
|
12.1
|
This Agreement enters into force and effect upon being signed and ends when the Refinancing Loan has been repaid in full, including any realisation of security that may be necessary.
|
|
[bei Syndizierung: Dieser Vertrag tritt nur dann in Kraft, wenn (a) er unterzeichnet worden ist und (b) das Transfer Certificate (wie im Kreditvertrag definiert) in Bezug auf die übertragene Beteiligung wirksam geworden ist und endet mit vollständiger Rückzahlung des Refinanzierungskredites einschließlich einer gegebenenfalls erforderlichen Sicherheitenverwertung.]
|
[for syndication: This Agreement enters into force an effect upon (a) being signed and (b) the transfer certificate (as defined in the Loan Agreement) in relation to the transferred commitment has become effective and ends when the Refinancing Loan has been repaid in full, including any realisation of security that may be necessary.]
|
|||
12.2
|
Dieser Vertrag unterliegt deutschem Recht. Zu Informationszwecken wurde das Dokument ins Englische übersetzt. Mit Ausnahme des Abrufformulars (Annex 1) ist die deutsche Version
|
12.2
|
The Agreement is governed by German law. It has been translated into English for information purposes only and except for the disbursement request form (Annex 1) the German version and language will prevail. The place of performance
|
und Sprache vorrangig. Erfüllungsort und Gerichtsstand ist Frankfurt am Main.
|
and of jurisdiction is Frankfurt am Main.
|
|||||
12.3
|
Sollte eine Bestimmung dieses Vertrages unwirksam oder nicht durchführbar sein, so bleiben dessen übrige Bestimmungen davon unberührt. Vertragliche Lücken sollen durch eine Regelung ersetzt werden, die dem Zweck dieses Vertrages am besten entspricht.
|
12.3
|
If any provision of this Agreement is invalid or not feasible, this will not affect the remaining provisions. Any gap in the provisions is to be filled with a legally valid provision which comes as close as possible to the spirit and purpose of this Agreement.
|
|||
12.4
|
Die Rechte und Pflichten aus diesem Vertrag dürfen nicht ohne vorherige schriftliche Zustimmung des Vertragspartners abgetreten, belastet oder übertragen werden.
|
12.4
|
Rights and obligations under this Agreement may not be assigned or pledged without the prior written consent of the corresponding contracting party.
|
|||
12.5
|
Erklärungen oder Mitteilungen in Zusammenhang mit diesem Vertrag sind rechtsverbindlich unterschrieben per Post oder Telefax an die folgenden Anschriften zu richten oder, soweit besonders vereinbart, per Datenfernübertragung zu übermitteln:
|
12.5
|
Representations or notices relating to this Agreement must be affixed with a legally binding signature and dispatched by post or facsimile to the following addresses or, if so agreed, by remote data transfer:
|
|||
Für die KfW:
KfW IPEX-Bank GmbH
[Ansprechpartner]
Palmengartenstraße 5-9
60325 Frankfurt am Main
Telefon:+49 (0) 69 74 31 – [•]
Telefax:+49 (0) 69 74 31 – 2944
Email: [•]
Für die Bank:
[•]
|
For KfW:
KfW IPEX-Bank GmbH
[contract person]
Palmengartenstraße 5-9
60325 Frankfurt am Main/Germany
phone:+49 (0) 69 74 31 – [•]
Fax:+49 (0) 69 74 31 – 2944
Email: [•]
For the Bank:
[•]
|
|||||
Ausgefertigt in zwei Urschriften, von denen jede Partei eine erhält.
|
Executed in two originals, one for each party.
|
Frankfurt am Main, [•]
|
[place], [•].
|
KfW IPEX-Bank GmbH
(duly authorised by KfW)
|
[Bank]
|
Anlage 2:Liste der subventionserheblichen Tatsachen für die Gewährung von Zinsausgleichsgarantien im Zusammenhang mit Schiffsfinanzierungen zum CIRR
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Annex 2:List of facts relevant to subsidies pertaining to the provision of Interest Make-up Guarantees in connection with ship financing at the CIRR
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Subventionserhebliche Tatsachen im Sinne von § 264 StGB in Verbindung mit § 2 Subventionsgesetz sind:
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Facts relevant to subsidies within the meaning of Section 264 of the German Criminal Code (StGB) in conjunction with Section 2 of the German Subsidy Act (SubvG) are:
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(a)
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die mit dem Käufer vereinbarten Preise und Zahlungsbedingungen (Ziffern 2.1.3 und 2.1.4 des Refinanzierungsvertrages)
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(a)
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the prices and terms of payment agreed with the buyer (Sections 2.1.3 and 2.1.4. of the Agreement)
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(b)
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die Höhe des gewährten Kredites sowie die vereinbarten Kreditbedingungen (Ziffer 2.2 des Refinanzierungsvertrages)
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(b)
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the amount of the Loan granted and the terms and conditions agreed for the Loan (Section 2.2 of the Agreement)
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(c)
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alle Festlegungen bzw. Veränderungen von Terminen und Beträgen, durch die eine der unter (a) und (b) genannten Größen bestimmt bzw. variiert wird, also insbesondere:
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(c)
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all cases in which deadlines and amounts that either determine or change one of the variables listed in (a) or (b) are laid down or altered, in particular:
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-
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sämtliche Angaben über Auszahlungsdaten und Auszahlungsbeträge sowie über Rückzahlungsdaten und Rückzahlungsbeträge
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-
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all data on disbursements and disbursement amounts as well as all data on repayments and repayment amounts
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-
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der Berechnung eventuell zugrunde gelegter Wechselkurse
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-
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the calculation of underlying exchange rates (if any)
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-
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vorgenommene Zinsfixierung bzw. Änderungen in der vereinbarten Bezugsbasis von Zinssätzen
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-
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the fixing of interest or changes in the agreed reference base for interest rates
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-
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Erhalt außerplanmäßiger Rückzahlungen, Versicherungsleistungen, Verwertungserlöse und anderer Zahlungen, durch die sich die ausstehende Forderung vermindert
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-
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receipt of off-schedule repayments, insurance payments, enforcement proceeds and other payments as a result of which the outstanding claim is reduced
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-
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Vereinbarungen über Änderungen des Kreditvertrages
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-
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agreements on amendments to the Loan Agreement
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(d)
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das Verbot der Weitergabe der Verwaltungskostenpauschale an den Kreditnehmer gemäß Ziffer 1.4. der AGB
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(d)
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the prohibition of the transfer of the Fee for Administrative Expenses to the Borrower in accordance with Section 1.4. of the General Terms
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Anlage 3: Allgemeine Bedingungen für den Zinsausgleich bei Schiffsfinanzierungen zum CIRR
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Annex 3: General Terms and Conditions for Interest Make-up in Ship Financing Schemes at the CIRR
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Clause
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Page
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1
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Headings, Capitalised Terms, References, and Language
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3
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2
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Abstract Acknowledgement of Debt
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5
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3
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Grant of Pledges
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6
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4
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Operation of Accounts
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6
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5
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Secured Obligations
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7
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6
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Representations and Warranties
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7
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7
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Protection of Collateral
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7
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8
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Enforcement of Collateral
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8
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9
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Release of Collateral
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9
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10
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Waivers of Pledgor
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10
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11
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Assignment and Transfer
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10
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12
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Substitution of a Pledgee
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10
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13
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Further Assurance
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11
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14
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Costs and Expenses
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11
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15
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Severability, Duration and other Matters
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11
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16
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Notification
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12
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17
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Notices and Other Matters
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12
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18
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Partial Invalidity
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13
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19
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Changes and Amendments
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14
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20
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Choice of Law and Jurisdiction
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14
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21
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Entire Agreement
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14
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22
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Process Agent
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14
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Schedule 1 Address details of the parties
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15
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Schedule 2 The Pledged Accounts
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16
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Schedule 3 Notification Letter
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17
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Schedule 4 Acknowledgement Letter
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19
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Schedule 5 Instruction to Account Bank
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21
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(1)
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ROYAL CARIBBEAN CRUISES LTD., a Liberian corporation incorporated under the laws of Liberia and registered in the Register of Companies of Liberia under C-38863, whose registered office is at 80 Broad Street, Monrovia, Liberia, as pledgor (hereinafter referred to as the Pledgor);
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(2)
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KfW IPEX-Bank GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) organised under the laws of the Federal Republic of Germany (Germany), whose registered office is at Palmengartenstraße 5-9, 60325 Frankfurt am Main, Germany, in its capacity as facility agent (hereinafter referred to as the Facility Agent); and
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(3)
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[KFW IPEX-BANK GMBH, in its capacity as lender (hereinafter referred to as the Lender, and together with the Facility Agent the Pledgees). [Note: update to include all Lenders as at the time of execution and adapt the rest of the pledge agreement accordingly.]]
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(A)
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The Pledgor and KfW IPEX-Bank GmbH as Hermes Agent, Facility Agent and Lender have entered into a loan agreement dated November [] 2015 (as amended, varied, novated, supplemented, superseded or extended from time to time, hereinafter referred to as the Credit Agreement), pursuant to which the Lender has agreed to make available to the Borrower a loan facility in US dollars in connection with the financing of a passenger cruise vessel bearing Meyer Werft GmbH’s hull number S-700 (the Vessel) (the Transaction).
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(B)
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The Pledgor has opened or will open a Euro-denominated and US dollar-denominated bank account at the Account Bank for certain payments to be made to it in Euros or US dollars in relation to the Transaction.
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(C)
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The pledge provided for in this Account Pledge Agreement is a condition precedent to the utilisation of the US dollar loan facility by the Pledgor under the Credit Agreement.
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1
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Headings, Capitalised Terms, References, and Language
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1.1
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Headings are for ease of reference only and shall not affect the construction of this Account Pledge Agreement.
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1.2
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Unless otherwise defined herein or unless the context otherwise requires, capitalised terms defined in the Credit Agreement shall have the same meaning when used in this Account
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1.3
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In addition, in this Account Pledge Agreement
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1.4
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Words importing the plural shall include the singular and vice versa.
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1.5
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This Account Pledge Agreement is made in the English language. For the avoidance of doubt, the English language version of this Account Pledge Agreement shall prevail over any translation of this Account Pledge Agreement. However, where a German translation of a word or phrase appears in the text of this Account Pledge Agreement, the German translation of such word or phrase shall prevail.
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1.6
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In this Account Pledge Agreement, any reference to:
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(a)
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a defined document is a reference to that defined document as from time to time amended, varied, novated, restated, supplemented or extended;
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(b)
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promptly means without undue delay (unverzüglich) as contemplated by Section 121 of the German Civil Code (Bürgerliches Gesetzbuch - BGB); and
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(c)
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clauses and schedules are to be construed as references to clauses of and schedules to this Account Pledge Agreement.
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2
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Abstract Acknowledgement of Debt
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3
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Grant of Pledges
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3.1
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The Pledgor hereby pledges (verpfändet) to each of the Pledgees all of its rights and claims in the current and future amounts standing to the credit of its accounts stated in Schedule 2 (The Pledged Accounts) hereto (including all sub-accounts thereto), (hereinafter together referred to as the Pledged Accounts), in particular, but not limited to, the right to claim payment from the Account Bank, and in each case including all interest accruing thereon (together the Collateral).
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3.2
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Each of the Pledgees hereby accepts the Pledges created under clause 3.1 above.
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3.3
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For the avoidance of doubt, the Parties agree that nothing in this Account Pledge Agreement shall exclude a transfer of all or part of the Pledges created hereunder by operation of law upon the assignment or transfer (including by way of assignment and assumption (Vertragsübernahme)) of all or part of the Secured Obligations by any Pledgee in accordance with the Loan Documents.
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4
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Operation of Accounts
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4.1
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Unless the Facility Agent has notified the Account Bank that an Event of Default has occurred and is continuing, the Pledgor shall be entitled on and after the commencement of the Security Period, without the consent of the Pledgees, to request that the Facility Agent instructs the Account Bank (which the Facility Agent agrees to do) in the form set out in Schedule 5 or in such other form the Facility Agent and Account Bank may agree to disburse all of the moneys standing to the credit of the Pledged Accounts, either :
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(a)
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on the Delivery Date, in accordance with the provisions of section 2.5(d) (i) and (ii) of the Credit Agreement; or
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(b)
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to such account or accounts as the Facility Agent may specify as prepayment, in whole or in part, of the Loan in accordance with section 3.2, 3.7 or 9.2 of the Credit Agreement. For the purposes of this clause 4.1(b), if the Pledgor shall be obliged to prepay the Loan in whole or in part pursuant to sections 3.2, 3.7 or 9.2 of the Credit Agreement, the Facility Agent, on behalf of the Pledgees, will, if and to the extent that there are EUR funds standing to the credit of the EUR Pledged Account, consent to the disbursement of such EUR funds to third party counterparties for the purpose of foreign exchange into Dollars, so long as such exchanged Dollar funds are paid directly to such account as may be designated by the Facility Agent for application in or towards such prepayment.
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4.2
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Unless the Facility Agent has notified the Account Bank that an Event of Default has occurred and is continuing, all interest earned on the Pledged Accounts shall, at such times as the Pledgor may in its discretion request and, in any event, at the end of the Security Period, be paid to the Pledgor or to its order to such account as the Pledgor may direct and the Pledgor
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5
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Secured Obligations
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6
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Representations and Warranties
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6.1
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it is duly organised and validly existing under the laws of Liberia, it has obtained all licenses and authorisations to carry out its business as it is now being conducted, all necessary or recommendable corporate action authorising the conclusion and performance of this Account Pledge Agreement has been taken, all consents, approvals or permits which are required or recommendable in connection with the conclusion and performance of this Account Pledge Agreement have been obtained and this Account Pledge Agreement constitutes legal, valid and binding obligations of the Pledgor enforceable in accordance with its terms;
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6.2
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subject to the provisions in the general terms and conditions of the Account Bank, it is the sole legal and beneficial owner of the Collateral, has full title thereto and is entitled to pledge the Collateral to the Pledgees; and
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6.3
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subject to the provisions in the general terms and conditions of the Account Bank, this Account Pledge Agreement constitutes a first priority right in the Collateral and the Collateral is not subject to any prior or pari passu rights, including, but not limited to, rights of pledge, rights of usufruct and attachment.
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7
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Protection of Collateral
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7.1
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not to assign, encumber or otherwise dispose of any of the Collateral or any interest therein or offer to do so, except as herein provided and subject to the provisions in the general terms and conditions of the Account Bank;
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7.2
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to refrain from any acts or omissions which would result in the Collateral being encumbered or further encumbered, except as herein provided and subject to the provisions in the general terms and conditions of the Account Bank;
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7.3
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to record the Pledges immediately in its books and records and to refrain from any acts or omissions which could prevent third parties who may have a legitimate interest in obtaining knowledge of the Pledges from obtaining
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7.4
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not to otherwise defeat or impair the rights of the Pledgees under or in connection with this Account Pledge Agreement;
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7.5
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to open a new account (other than any Pledged Accounts in existence at the date of this Account Pledge Agreement) to hold the proceeds of the Loan disbursed or to be disbursed under the Credit Agreement only with prior written consent of the Facility Agent, and in accordance with the Credit Agreement. In such a case, the Pledgor shall grant a corresponding account pledge to the Pledgees over the newly established account;
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7.6
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to inform the Pledgees, by written notice to the Facility Agent, as soon as possible in the case the Pledgees’ rights in respect of the Collateral are prejudiced or jeopardised by attachment or are prejudiced or jeopardised by other material actions of third parties. Such information shall be accompanied, in the case of any attachment, by a copy of the order for attachment as well as all documents required for the filing of an objection against the attachment, and, in case of any other actions by third parties, by copies evidencing which actions have been or will be taken, respectively, as well as all documents required for the filing of an objection against such actions. The Pledgor shall further be obliged to inform as soon as possible the attaching creditors or other third parties asserting rights with respect to the Collateral in writing of the Pledgees’ rights in respect of the Collateral. All reasonable and adequately documented costs and expenses for countermeasures of the Pledgees shall be borne by the Pledgor. This shall also apply to the institution of legal action which any of the Pledgees reasonably considers necessary;
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7.7
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to inform the Pledgees, by written notice to the Facility Agent, promptly of any subsequent material changes in the value of the Pledged Accounts resulting from any set off or other reasons, after becoming aware of such changes other than in the ordinary course of business; and
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7.8
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to notify the Pledgees, by written notice to the Facility Agent, promptly of any event or circumstance which might be expected to have a material adverse effect on the validity or enforceability of this Account Pledge Agreement.
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8
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Enforcement of Collateral
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8.1
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Following the occurrence of an Event of Default and, in addition, if and when the requirements of Section 1204 et seq. of the German Civil Code (BGB) (Pfandreife) are met in respect of the Secured Obligations (or any part thereof) (an Enforcement Event), the Pledgees, acting through the Facility Agent, shall be entitled, after having given one week's notice to the Pledgor and if such Event of Default is then still continuing, to avail themselves of all rights and
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8.2
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In the case of the occurrence and (having regard to clause 8.1) continuation of an Enforcement Event, the Pledgees, acting through the Facility Agent, shall in particular be entitled to
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(a)
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collect the monies standing to the credit of the Pledged Accounts;
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(b)
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request that all documents relating to the Pledges be handed over to the Facility Agent and the Pledgor hereby agrees to comply promptly with any such request; and
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(c)
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take any other actions not mentioned in clauses (a) and (b) above which are necessary or appropriate for the purpose of realising the security granted by the Pledgor in accordance with this Account Pledge Agreement, to the extent that such actions are permissible under the applicable law and not restricted by any other Loan Document.
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8.3
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The Facility Agent shall apply such amounts in accordance with the provisions of the Credit Agreement and the other Loan Documents.
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9
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Release of Collateral
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9.1
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Upon (a) complete and irrevocable satisfaction of the Secured Obligations or (b) the end of the Security Period, the Pledgees, acting through the Facility Agent, will, upon request of the Pledgor, declare the release of the Pledges (Pfandfreigabe) to the Pledgor as a matter of record. For the avoidance of doubt, the Parties are aware that upon complete and irrevocable satisfaction of the Secured Obligations or, if earlier, the ending of the Security Period, the Pledges, due to their accessory nature (Akzessorietät), cease to exist by operation of law (the Discharge Date).
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9.2
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At any time when the total value of the aggregate security granted by the Pledgor and any of the other Security Grantors to secure the Secured Obligations which can be expected to be realised in the event of an enforcement of the Security (realisierbarer Wert) not only temporarily exceeds 110% of the Secured Obligations (hereinafter referred to as the Limit), the Facility Agent, acting on behalf of the Pledgees, shall on demand of the Pledgor release such part of the security (Sicherheitenfreigabe) as the Facility Agent may in its reasonable discretion determine so as to reduce the realisable value of the security to the Limit.
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9.3
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If the Pledgees are required to release any security prior to the Discharge Date, they shall be free to select the security to be released, taking into consideration the legitimate interest of the Pledgor.
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10
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Waivers of Pledgor
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10.1
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The Pledgor hereby expressly waives, to the fullest extent legally admissible, all defences of voidability (Anfechtbarkeit, Sections 1211, 770 of the German Civil Code (BGB)) and set-off (Aufrechenbarkeit, Sections 1211, 770 of the German Civil Code (BGB)) and any other defences that a pledgor may have under German law, including, but not limited to, all defences, to the fullest extent possible, in terms of Section 1211 of the German Civil Code (BGB), with the exception that the waiver shall not apply to set-offs or counterclaims that are (i) uncontested, or (ii) based on an unappealable court decision.
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10.2
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In case of enforcement of the Pledges under this Account Pledge Agreement, as long as any of the Secured Obligations remain outstanding, no rights of the Pledgees shall pass to the Pledgor or third parties by subrogation or otherwise, such rights being hereby waived by the Pledgor under this Account Pledge Agreement and relating to all forms of subrogation and all kind of security interest, including, but not limited to, pledges and guarantees (Bürgschaften). In particular, but not limited to, the Pledgor hereby waives, to the fullest extent legally admissible, any rights to subrogation in terms of Section 1225 of the German Civil Code (BGB).
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11
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Assignment and Transfer
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11.1
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Each of the Pledgees shall, at any time have the right to assign, to transfer, or to dispose of its rights in the Secured Obligations together with the rights and obligations under this Account Pledge Agreement (other than the Pledges which will be transferred by operation of law in the event the Secured Obligations are transferred) to any person who is, or may become, a Lender pursuant to and in accordance with the Credit Agreement. The Pledgor hereby already explicitly and irrevocably consents to such assignment, transfer or disposal.
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11.2
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The Facility Agent shall, at any time have the right to assign, to transfer, or to dispose of its rights and obligations under this Account Pledge Agreement to any person who becomes a Facility Agent pursuant to and in accordance with the Credit Agreement. The Pledgor hereby already explicitly and irrevocably consents to such assignment, transfer or disposal.
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11.3
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The Pledgor shall not be entitled to assign, to transfer, or to dispose of all or any part of its rights or obligations or both hereunder.
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12
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Substitution of a Pledgee
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13
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Further Assurance
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13.1
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Should any further actions and/or declarations be necessary in order to validly pledge the Collateral or any part thereof to the Pledgees, the Pledgor undertakes to take such actions and/or to provide such declarations upon the Pledgees’ demand.
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13.2
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The Pledgor herewith irrevocably authorises (bevollmächtigt unwiderruflich) the Facility Agent (including the right to grant sub-power of attorney (Untervollmacht)) to perform actions and declarations set out in clauses 12 and 13.1 above also in the Pledgor's name. The Facility Agent is herewith exempted from the restrictions of Section 181 of the German Civil Code (BGB).
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14
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Costs and Expenses
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15
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Severability, Duration and other Matters
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15.1
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The validity and effect of each of the Pledges created hereunder shall be independent from the validity and the effect of any of the other Pledges created hereunder.
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15.2
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This Account Pledge Agreement shall remain in full force and effect until the Secured Obligations have been completely satisfied. The Pledges shall not cease to exist if the Secured Obligations have only temporarily been satisfied.
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15.3
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As long as the Secured Obligations are not completely satisfied and not all facilities which may give rise to the Secured Obligations have been terminated, the Pledgor shall not assert any claims against any other person which might arise from the fulfilment of its obligations according to this Account Pledge Agreement, either contractual or statutory. The monies which are transferred to or debited by the Pledgor from such other person shall be received by the Pledgor on trust (treuhänderisch) and transferred by it on trust to the Facility Agent.
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15.4
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This Account Pledge Agreement shall create a continuing security and no change or amendment in the Transaction Documents shall affect the validity and the scope of this Account
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15.5
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Subject to anything expressed to the contrary in this Account Pledge Agreement, the Pledges are independent from and granted in addition to any other security or guarantee which may have been given to the Pledgees with respect to any of the Secured Obligations. None of such other security interests shall prejudice, or shall be prejudiced by, or shall be merged in any way with, this Account Pledge Agreement.
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15.6
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This Account Pledge Agreement shall inure to the benefit of the Pledgees, their respective successors and permitted assigns.
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16
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Notification
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16.1
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In order to comply with the requirement of Section 1280 of the German Civil Code (BGB) the Pledgor shall notify the Account Bank of the Pledge created hereunder by delivery to the Account Bank of a notification letter as set out in Schedule 3 to this Account Pledge Agreement on the date of this Account Pledge Agreement.
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16.2
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The Pledgor shall use all reasonable endeavours to procure that the Account Bank confirms receipt of the notification letter by signing the acknowledgement letter as set out in Schedule 4 of this Account Pledge Agreement.
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17
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Notices and Other Matters
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17.1
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Notices
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(a)
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Any notice or communication to be made under or in connection with this Account Pledge Agreement shall be made in writing and, unless otherwise stated, may be made by prepaid letter or fax.
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(b)
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Addresses for notices
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(c)
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Delivery of notices
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(i)
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if by way of fax, when received in complete and legible form; or
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(ii)
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if by way of letter, when received by its addressee,
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17.2
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No implied waiver, remedies cumulative
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17.3
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English translations
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17.4
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Counterparts
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18
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Partial Invalidity
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19
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Changes and Amendments
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20
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Choice of Law and Jurisdiction
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20.1
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This Account Pledge Agreement and any non-contractual obligations connected with it shall be governed by and construed in accordance with the laws of the Federal Republic of Germany.
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20.2
|
The place of jurisdiction shall be Frankfurt am Main, Germany, provided, however, that each of the Pledgees shall also be entitled to take legal action against the Pledgor before any other court of competent jurisdiction.
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21
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Entire Agreement
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22
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Process Agent
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22.1
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For the purpose of any suit, action, proceeding or settlement of dispute in the German courts, the Pledgor hereby undertakes to appoint (zu bestellen) and to authorise (bevollmächtigen) [Note: Address details of Process Agent in Germany to be added] Germany, as process agent (Zustellungsbevollmächtigten) to accept service of process in respect of any such suit, action, proceeding or settlement of dispute in connection with this Account Pledge Agreement. The Pledgor shall furnish the Facility Agent with written confirmation from the process agent that the process agent has accepted such appointment.
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22.2
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If for any reason, such process agent no longer serves as agent to receive process in the Federal Republic of Germany, the Pledgor shall promptly notify the Facility Agent and within a period of 30 days appoint a substitute process agent acceptable to the Facility Agent.
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Party
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Name
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Details
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Pledgor
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Royal Caribbean Cruises Ltd.
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Address for notices:
1050 Caribbean Way
Florida 33132, Miami
United States of America
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Attention:
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General Counsel
|
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B. Stein
|
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Facsimile:
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+1 (305) 539-64 00
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Email:
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bstein@rccl.com
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Facility Agent
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KfW IPEX-Bank GmbH
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Address for notices:
Palmengartenstraße 5-9
60325 Frankfurt am Main
Germany
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Attention:
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Maritime Industries
|
||
Mrs. Claudia Wenzel
|
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E-mail:
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claudia.wenzel@kfw.de
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Fax:
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+49 (69) 7431 3768
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With a copy to: Credit Operations
|
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Fax:
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+49 (69) 7431 2944
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Account name
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Account Bank
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Account Holder
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Account Number
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IBAN
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[ ] (EUR Account)
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Norddeutsche Landesbank Girozentrale
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Borrower
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[ ]
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[ ]
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[ ] (Dollar Account)
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Norddeutsche Landesbank Girozentrale
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Borrower
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[ ]
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[ ]
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1
|
Royal Caribbean Cruises Ltd. (the Pledgor) hereby gives you notice in accordance with Section 1280 German Civil Code (BGB) that by an accounts pledge agreement dated [·] it has pledged in favour of KfW IPEX-Bank GmbH in its capacity as facility agent (the Facility Agent) and KfW IPEX-Bank GmbH in its capacity as lender (the Lender) (the Facility Agent and the Lender are hereinafter referred together to as the Pledgees) (the Account Pledge Agreement) all of its rights, interests and claims in the current and future amounts standing to credit of the following accounts held in the name of the Pledgor with you:
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·
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Account number [ ] (IBAN DE[ ]);
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·
|
Account number [ ]
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2
|
The Pledgor hereby requests that you deliver to the Pledgor and the Pledgees confirmation of receipt of this notice in the form attached to this letter (the Acknowledgement Letter) and further request that you provide to the Pledgees all information which they request from time to time concerning the Pledged Accounts.
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3
|
The Pledgor hereby further requests you to agree:
|
(a)
|
not to make any set-off or deduction from the Pledged Accounts or invoke any rights of retention in relation to the Pledged Accounts during the existence of the Account Pledge Agreement, other than in relation to (i) charges payable in connection with the maintenance of the Pledged Accounts in the ordinary course of business relating thereto or (ii) other bank charges or fees payable in relation to reverse and correction entries and/or amounts arising from the return of direct debits or cheques credited to an account, in each case to the extent relating to such Pledged Accounts; and
|
(b)
|
that the pledge in your favour over the Pledged Accounts granted pursuant to your general business conditions shall rank for the time the Accounts Pledge Agreement is in force behind the pledge over the Pledged Accounts granted to the Pledgees by the Pledgor pursuant to the Accounts Pledge Agreement and that you agree to be treated in all respect as if the pledge granted pursuant to your general business conditions would have been created after the pledge under the Accounts Pledge Agreement has been perfected.
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4
|
Please confirm that you have neither received any previous notice of pledge relating to the Pledged Accounts nor are aware of any third party rights in relation to the Pledged Accounts.
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5
|
We hereby confirm that you will be only entitled to follow the instructions of the Facility Agent in relation to the Pledged Accounts.
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6
|
This Notice shall be governed by and construed in accordance with the laws of Germany.
|
7
|
Place of jurisdiction shall be Frankfurt am Main, Germany.
|
Royal Caribbean Cruises Ltd.
|
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KfW IPEX-Bank GmbH in its capacity as Facility Agent
|
|||
KfW IPEX-Bank GmbH in its capacity as Lender
|
[Norddeutsche Landesbank Girozentrale]
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Account Holder
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[ ]
|
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Bank Name
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[ ]
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IBAN
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[ ]
|
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SWIFT
|
[ ]
|
|
Amount
|
[ ]
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Reference
|
[ ]
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Account Holder
|
[ ]
|
|
Bank Name
|
[ ]
|
|
IBAN
|
[ ]
|
|
SWIFT
|
[ ]
|
|
Amount
|
[ ]
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Account Holder
|
[ ]
|
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Bank Name
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[ ]
|
|
IBAN
|
[ ]
|
|
SWIFT
|
[ ]
|
|
Amount
|
[ ]
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ROYAL CARIBBEAN CRUISES LTD.
|
|||
acting by:
|
|||
Name:
|
|||
Title:
|
KFW IPEX-BANK GMBH
|
||||
acting by:
|
||||
Name:
|
Name:
|
|||
Title:
|
Title:
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KFW IPEX-BANK GMBH
|
||||
acting by:
|
||||
Name:
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Name:
|
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Title:
|
Title:
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
|
||
SECTION 1.1.
|
Defined Terms
|
1
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SECTION 1.2.
|
Use of Defined Terms
|
14
|
SECTION 1.3.
|
Cross-References
|
14
|
SECTION 1.4.
|
Application of this Agreement to KfW IPEX as an Option A Lender
|
14
|
SECTION 1.5.
|
Accounting and Financial Determinations
|
14
|
ARTICLE II COMMITMENTS AND BORROWING PROCEDURES
|
||
SECTION 2.1.
|
Commitment
|
15
|
SECTION 2.2.
|
Commitment of the Lenders
|
15
|
SECTION 2.3.
|
Voluntary Reduction of Commitments
|
16
|
SECTION 2.4.
|
[Reserved]
|
16
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SECTION 2.5.
|
Borrowing Procedure
|
16
|
SECTION 2.6.
|
Funding
|
17
|
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
|
||
SECTION 3.1.
|
Repayments
|
18
|
SECTION 3.2.
|
Prepayment
|
18
|
SECTION 3.3.
|
Interest Provisions
|
20
|
SECTION 3.3.1.
|
Rates
|
20
|
SECTION 3.3.2.
|
Election of Floating Rate
|
21
|
SECTION 3.3.3.
|
Conversion to Floating Rate
|
21
|
SECTION 3.3.4.
|
Post-Maturity Rates
|
22
|
SECTION 3.3.5.
|
Payment Dates
|
22
|
SECTION 3.3.6.
|
Interest Rate Determination; Replacement Reference Banks
|
22
|
SECTION 3.4.
|
Commitment Fee
|
23
|
SECTION 3.4.1.
|
Payment of Commitment Fee
|
23
|
SECTION 3.5.
|
CIRR Guarantee Charge
|
23
|
SECTION 3.5.1.
|
Generally
|
23
|
SECTION 3.5.2.
|
Payment
|
24
|
SECTION 3.5.3.
|
[Reserved]
|
24
|
SECTION 3.6.
|
Other Fees
|
24
|
SECTION 3.7.
|
Temporary Repayment
|
24
|
SECTION 3.8.
|
Limit on Interest Make-Up
|
25
|
SECTION 3.9.
|
Cancellation of CIRR Agreements
|
25
|
ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS
|
||
SECTION 4.1.
|
LIBO Rate Lending Unlawful
|
25
|
SECTION 4.2.
|
Deposits Unavailable
|
25
|
SECTION 4.3.
|
Increased LIBO Rate Loan Costs, etc.
|
26
|
SECTION 4.4.
|
Funding Losses
|
28
|
SECTION 4.4.1.
|
Indemnity
|
28
|
SECTION 4.5.
|
Increased Capital Costs
|
30
|
SECTION 4.6.
|
Taxes
|
31
|
SECTION 4.7.
|
Reserve Costs
|
33
|
SECTION 4.8.
|
Payments, Computations, etc.
|
34
|
SECTION 4.9.
|
Replacement Lenders, etc.
|
35
|
SECTION 4.10.
|
Sharing of Payments
|
35
|
SECTION 4.10.1.
|
Payments to Lenders
|
35
|
SECTION 4.10.2.
|
Redistribution of payments
|
36
|
SECTION 4.10.3.
|
Recovering Lender's rights
|
36
|
SECTION 4.10.4.
|
Reversal of redistribution
|
36
|
SECTION 4.10.5.
|
Exceptions
|
36
|
SECTION 4.11.
|
Set-off
|
37
|
SECTION 4.12.
|
Use of Proceeds
|
37
|
SECTION 4.13.
|
FATCA Deduction
|
38
|
SECTION 4.14.
|
FATCA Information
|
38
|
SECTION 4.15.
|
Resignation of the Facility Agent
|
40
|
ARTICLE V CONDITIONS TO BORROWING
|
||
SECTION 5.1.
|
Advance of the Loan
|
40
|
SECTION 5.1.1.
|
Resolutions, etc.
|
40
|
SECTION 5.1.2.
|
Opinions of Counsel
|
41
|
SECTION 5.1.3.
|
Hermes Insurance Policy
|
41
|
SECTION 5.1.4.
|
Closing Fees, Expenses, etc.
|
41
|
SECTION 5.1.5.
|
Compliance with Warranties, No Default, etc.
|
42
|
SECTION 5.1.6.
|
Loan Request
|
42
|
SECTION 5.1.7.
|
Foreign Exchange Counterparty Confirmations
|
42
|
SECTION 5.1.8.
|
Pledge Agreement
|
43
|
ARTICLE VI REPRESENTATIONS AND WARRANTIES
|
||
SECTION 6.1.
|
Organisation, etc.
|
43
|
SECTION 6.2.
|
Due Authorisation, Non-Contravention, etc.
|
43
|
SECTION 6.3.
|
Government Approval, Regulation, etc.
|
44
|
SECTION 6.4.
|
Compliance with Laws
|
44
|
SECTION 6.5.
|
Validity, etc.
|
44
|
SECTION 6.6.
|
No Default, Event of Default or Prepayment Event
|
44
|
SECTION 6.7.
|
Litigation
|
45
|
SECTION 6.8.
|
The Purchased Vessel
|
45
|
SECTION 6.9.
|
Obligations rank pari passu
|
45
|
SECTION 6.10.
|
Withholding, etc.
|
45
|
SECTION 6.11.
|
No Filing, etc. Required
|
45
|
SECTION 6.12.
|
No Immunity
|
46
|
SECTION 6.13.
|
Investment Company Act
|
46
|
SECTION 6.14.
|
Regulation U
|
46
|
SECTION 6.15.
|
Accuracy of Information
|
46
|
ARTICLE VII COVENANTS
|
||
SECTION 7.1.
|
Affirmative Covenants
|
47
|
SECTION 7.1.1.
|
Financial Information, Reports, Notices, etc.
|
47
|
SECTION 7.1.2.
|
Approvals and Other Consents
|
48
|
SECTION 7.1.3.
|
Compliance with Laws, etc.
|
48
|
SECTION 7.1.4.
|
The Purchased Vessel
|
49
|
SECTION 7.1.5.
|
Insurance
|
49
|
SECTION 7.1.6.
|
Books and Records
|
50
|
SECTION 7.1.7.
|
Hermes Insurance Policy/Federal Republic of Germany Requirement
|
50
|
SECTION 7.1.8.
|
Notice of written amendments to Construction Contract
|
50
|
SECTION 7.2.
|
Negative Covenants
|
51
|
SECTION 7.2.1.
|
Business Activities
|
51
|
SECTION 7.2.2.
|
Indebtedness
|
51
|
SECTION 7.2.3.
|
Liens
|
51
|
SECTION 7.2.4.
|
Financial Condition
|
54
|
SECTION 7.2.5.
|
Investments
|
54
|
SECTION 7.2.6.
|
Consolidation, Merger, etc.
|
54
|
SECTION 7.2.7.
|
Asset Dispositions, etc.
|
55
|
SECTION 7.2.8.
|
Construction Contract
|
55
|
SECTION 7.3.
|
Limitation of in respect of Certain Representations, Warranties and Covenants
|
56
|
ARTICLE VIII EVENTS OF DEFAULT
|
||
SECTION 8.1.
|
Listing of Events of Default
|
56
|
SECTION 8.1.1.
|
Non-Payment of Obligations
|
56
|
SECTION 8.1.2.
|
Breach of Warranty
|
56
|
SECTION 8.1.3.
|
Non-Performance of Certain Covenants and Obligations
|
56
|
SECTION 8.1.4.
|
Default on Other Indebtedness
|
57
|
SECTION 8.1.5.
|
Bankruptcy, Insolvency, etc.
|
57
|
SECTION 8.2.
|
Action if Bankruptcy
|
58
|
SECTION 8.3.
|
Action if Other Event of Default
|
58
|
ARTICLE IX PREPAYMENT EVENTS
|
||
SECTION 9.1.
|
Listing of Prepayment Events
|
59
|
SECTION 9.1.1.
|
Change of Control
|
59
|
SECTION 9.1.2.
|
Unenforceability
|
59
|
SECTION 9.1.3.
|
Approvals
|
59
|
SECTION 9.1.4.
|
Non-Performance of Certain Covenants and Obligations
|
59
|
SECTION 9.1.5.
|
Judgments
|
59
|
SECTION 9.1.6.
|
Condemnation, etc.
|
60
|
SECTION 9.1.7.
|
Arrest
|
60
|
SECTION 9.1.8.
|
Sale/Disposal of the Purchased Vessel
|
60
|
SECTION 9.1.9.
|
Delayed Delivery of the Purchased Vessel
|
60
|
SECTION 9.1.10.
|
Termination of the Construction Contract
|
60
|
SECTION 9.1.11.
|
Termination, etc. of the Hermes Insurance Policy
|
60
|
SECTION 9.2.
|
Mandatory Prepayment
|
61
|
ARTICLE X THE FACILITY AGENT AND THE HERMES AGENT
|
||
SECTION 10.1.
|
Actions
|
61
|
SECTION 10.2.
|
Indemnity
|
62
|
SECTION 10.3.
|
Funding Reliance, etc.
|
62
|
SECTION 10.4.
|
Exculpation
|
62
|
SECTION 10.5.
|
Successor
|
63
|
SECTION 10.6.
|
Loans by the Facility Agent
|
64
|
SECTION 10.7.
|
Credit Decisions
|
64
|
SECTION 10.8.
|
Copies, etc.
|
64
|
SECTION 10.9.
|
The Agents' Rights
|
65
|
SECTION 10.10.
|
The Facility Agent's Duties
|
65
|
SECTION 10.11.
|
Employment of Agents
|
65
|
SECTION 10.12.
|
Distribution of Payments
|
66
|
SECTION 10.13.
|
Reimbursement
|
66
|
SECTION 10.14.
|
Instructions
|
66
|
SECTION 10.15.
|
Payments
|
66
|
SECTION 10.16.
|
"Know your customer" Checks
|
67
|
SECTION 10.17.
|
No Fiduciary Relationship
|
67
|
ARTICLE XI MISCELLANEOUS PROVISIONS
|
||
SECTION 11.1.
|
Waivers, Amendments, etc.
|
67
|
SECTION 11.2.
|
Notices
|
68
|
SECTION 11.3.
|
Payment of Costs and Expenses
|
69
|
SECTION 11.4.
|
Indemnification
|
70
|
SECTION 11.5.
|
Survival
|
71
|
SECTION 11.6.
|
Severability; Independence of Obligations
|
71
|
SECTION 11.7.
|
Headings
|
72
|
SECTION 11.8.
|
Execution in Counterparts
|
72
|
SECTION 11.9.
|
Third Party Rights
|
72
|
SECTION 11.10.
|
Successors and Assigns
|
72
|
SECTION 11.11.
|
Sale and Transfer of the Loan; Participations in the Loan
|
72
|
SECTION 11.11.1.
|
Assignments
|
72
|
SECTION 11.11.2.
|
Participations
|
75
|
SECTION 11.11.3.
|
Register
|
76
|
SECTION 11.12.
|
Other Transactions
|
76
|
SECTION 11.13.
|
Hermes Insurance Policy
|
76
|
SECTION 11.13.1.
|
Terms of Hermes Insurance Policy
|
76
|
SECTION 11.13.2.
|
Obligations of the Borrower
|
77
|
SECTION 11.13.3.
|
Obligations of the Hermes Agent and the Lenders
|
78
|
SECTION 11.14.
|
Law and Jurisdiction
|
78
|
SECTION 11.14.1.
|
Governing Law
|
78
|
SECTION 11.14.2.
|
Jurisdiction
|
79
|
SECTION 11.14.3.
|
Alternative Jurisdiction
|
79
|
SECTION 11.14.4.
|
Service of Process
|
79
|
SECTION 11.15.
|
Confidentiality
|
79
|
SECTION 11.16.
|
CIRR requirements
|
80
|
SECTION 11.17.
|
Mitigation
|
81
|
EXHIBITS
|
||
Exhibit A
|
-
|
Form of Loan Request
|
Exhibit B-1
|
-
|
Form of Opinion of Liberian Counsel to Borrower
|
Exhibit B-2
|
-
|
Form of Opinion of English Counsel to Facility Agent and Lenders
|
Exhibit B-3
|
-
|
Form of Opinion of German Counsel to Facility Agent and Lenders
|
Exhibit B-4
|
-
|
Form of Opinion of US Tax Counsel to Lenders
|
Exhibit C
|
-
|
Form of Lender Assignment Agreement
|
Exhibit D
|
-
|
Form of Option A Refinancing Agreement
|
Exhibit E
|
-
|
Form of Pledge Agreement
|
(A)
|
The Borrower and Meyer Werft GmbH & Co. KG (the "Builder") have on June 12, 2015 entered into a Contract for the Construction and Sale of Hull No. S-713 (as amended from time to time, the "Construction Contract") pursuant to which the Builder has agreed to design, construct, equip, complete, sell and deliver the passenger cruise vessel bearing Builder's hull number S-713 (the "Purchased Vessel");
|
(B)
|
The Lenders have agreed to make available to the Borrower, upon the terms and conditions contained herein, a US dollar loan facility calculated on the amount (the "Maximum Loan Amount") equal to (x) eighty per cent (80%) of the Contract Price (as defined below) of the Purchased Vessel (as defined below), as adjusted from time to time in accordance with the Construction Contract to reflect, among other adjustments, change orders, but which Contract Price shall not exceed for this purpose EUR 948,850,000 (the "Contract Price Proceeds"), plus (y) 100% of the Hermes Fee (as defined below) (the "Hermes Fee Proceeds") and being made available in the US Dollar Equivalent of that Maximum Loan Amount; and
|
(C)
|
The Contract Price Proceeds will be provided to the Borrower two (2) Business Days prior to the delivery of the Purchased Vessel for the purpose of paying a portion of the Contract Price in connection with the Borrower's purchase of the Purchased Vessel. The Hermes Fee Proceeds will be provided on the Disbursement Date and paid as set forth in Section 2.5(c) and (d).
|
(a)
|
net cash from operating activities (determined in accordance with GAAP) for such period, as shown in the Borrower's consolidated statement of cash flow for such period, to
|
(b)
|
the sum of:
|
(a)
|
any Interest Period which would otherwise end on a day which is not a Business Day shall end on the next Business Day to occur, except if such Business Day does not fall in the same calendar month, the Interest Period will end on the last Business Day in that calendar month, the interest amount due in respect of the Interest Period in question and in respect of the next following Interest Period being adjusted accordingly; and
|
(b)
|
if any Interest Period is altered by the application of a) above, the subsequent Interest Period shall end on the day on which it would have ended if the preceding Interest Period had not been so altered.
|
(a)
|
any loan or advance made by such Person to any other Person (excluding commission, travel, expense and similar advances to officers and employees made in the ordinary course of business); and
|
(b)
|
any ownership or similar interest held by such Person in any other Person.
|
(a)
|
subject to Section 3.3.6, if no such rate appears on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any such replacement page) at the relevant time, the LIBO Rate shall be the rate per annum certified by the Facility Agent to be the average of the rates quoted by the Reference Banks as the rate at which each of the Reference Banks was (or would have been) offered deposits of Dollars by prime banks in the London interbank market in an amount approximately equal to the amount of the Loan and for a period of six months (or for such other period as shall be agreed by the Borrower and the Facility Agent);
|
(b)
|
for the purposes of determining the post-maturity rate of interest under Section 3.3.4, the LIBO Rate shall be determined by reference to deposits on an overnight or call basis or for such other period or periods as the Facility Agent may determine after consultation with the Lenders, which period shall be no longer than one month unless the Borrower otherwise agrees; and
|
(c)
|
if the LIBO Rate determined in accordance with the foregoing provisions of this definition is less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
|
(a)
|
all cash on hand of the Borrower and its Subsidiaries; plus
|
(b)
|
all Cash Equivalents.
|
(a)
|
borrowed money (whether by loan or issuance and sale of debt securities), including drawings under this Agreement and any revolving credit facilities, and
|
(b)
|
the issuance and sale of equity securities.
|
(a)
|
for all EUR amounts payable in respect of the Contract Price (excluding the portion thereof comprising the Buyer's Allowance), the total of such EUR amounts converted to a corresponding Dollar amount as determined using the weighted average rate of exchange that the Borrower has agreed, either in the spot or forward currency markets, to pay its counterparties for the purchase of the relevant amounts of EUR with Dollars for the payment of the instalments of the Contract Price and including in such weighted average the spot rates for any EUR amounts due that have not been hedged by the Borrower;
|
(b)
|
for all EUR amounts payable in respect of the Buyer's Allowance, the total of such EUR amounts converted to a corresponding Dollar amount as determined using the USD-to-EUR rate used by the Borrower to convert the relevant USD amount of the amount of the Buyer's Allowance into EUR for the purpose of the Builder invoicing the same to the Borrower in EUR in accordance with the Construction Contract; and
|
(c)
|
for the calculation and payment of the Hermes Fee in Dollars, the amount thereof in EUR converted to a corresponding Dollar amount as determined by Hermes on the basis of the latest rate for the purchase of EUR with Dollars to be published by the German Federal Ministry of Finance prior to the time that Hermes issues its invoice for the Hermes Fee.
|
(a)
|
Each Lender will make its portion of the Loan available to the Borrower in accordance with Section 2.5 two (2) Business Days prior to the delivery of the Purchased Vessel to the Borrower under the Construction Contract. The commitment of each Lender described in this Section 2.2 (herein referred to as its "Commitment") shall be the commitment of such Lender to make available to the Borrower its portion of the Loan hereunder expressed as the initial amount set forth opposite such Lender's name on its signature page attached hereto or, in the case of any Lender that becomes a Lender pursuant to an assignment pursuant to Section 11.11.1, the amount set forth as such Lender's Commitment in the related Lender Assignment Agreement, in each case as such amount may be reduced from time to time pursuant to Section 2.3 or reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.11.1.
|
(b)
|
Each Lender's Commitment shall terminate on the earlier of (i) the Commitment Termination Date if the Purchased Vessel is not delivered to the Borrower prior to such date and (ii) the delivery to the Borrower of the Purchased Vessel.
|
(c)
|
If any Lender shall default in its obligations under Section 2.1, the Facility Agent shall, at the request of the Borrower, use reasonable efforts to assist the Borrower in finding a bank or financial institution acceptable to the Borrower to replace such Lender.
|
(a)
|
The Borrower may at any time terminate, or from time to time partially reduce, the Commitments upon written notice to the Facility Agent setting forth the amount of the reduction in the Commitments (the "Reduction Notice"). The requested reduction shall be effective two Business Days after the date of delivery of the Reduction Notice and shall be applied to the respective Commitments of the Lenders pro rata according to the amounts of their respective Commitments immediately prior to giving effect to such reduction.
|
(b)
|
If the Reduction Notice is delivered by the Borrower at least 63 days prior to the actual Disbursement Date, the Borrower shall not incur any liability to make any payments pursuant to Section 4.4 or to incur any other indemnity or compensation obligation. If the Reduction Notice is delivered by the Borrower less than 63 days prior to the actual Disbursement Date, the Borrower shall either (i) pay such compensation to the relevant Lender as required by, and in accordance with, Section 4.4 to the extent such Lender incurs a loss as set out in Section 4.4 or (ii) extend the Disbursement Date to a date that falls at least 63 days after the Reduction Notice was first delivered by the Borrower. In the event that the Borrower elects the option under the foregoing clause (ii), the Borrower shall deliver a Loan Request to the Facility Agent in accordance with Section 2.5(a), and the proposed Disbursement Date set out in such Loan Request shall be a date that falls at least 63 days after the Reduction Notice was first delivered by the Borrower.
|
(a)
|
The Borrower shall deliver a Loan Request and the documents required to be delivered pursuant to Section 5.1.1(a) to the Facility Agent on or before 11:00 a.m., London time, not less than two (2) Business Days in advance of the date that is two (2) Business Days prior to the anticipated Delivery Date. The aggregate amount of the Loan to be advanced shall not exceed the US Dollar Maximum Loan Amount.
|
(b)
|
The Facility Agent shall promptly notify each Lender of any Loan Request by forwarding a copy thereof to each Lender, together with its attachments. On the terms and subject to the conditions of this Agreement, the Loan shall be made on the Business Day specified in such Loan Request. On or before 2:00 p.m., London time, on the Business Day specified in such Loan Request, each Lender shall, without any set-off or counterclaim, deposit with the Facility Agent same day Dollar funds in an amount equal to such Lender's Percentage of the requested Loan. Such deposit will be made to an account which the Facility Agent shall specify from time to time by notice to the Lenders. To the extent funds are so received from the Lenders, the Facility Agent shall, without any set-off or counterclaim, make such funds available to the Borrower on the Business Day specified in the Loan Request by wire transfer of same day funds to the account or accounts the Borrower shall have specified in its Loan Request.
|
(c)
|
The Borrower shall, upon receipt of the Dollar funds into the account referred to in Section 2.5(b) above, (i) complete the purchase of EUR with its counterparties or otherwise as set out in the Loan Request (by authorising and instructing the Facility Agent to remit the necessary Dollar funds to the said counterparties) and shall procure the payment of all EUR proceeds of such transactions to the EUR Pledged Account no later than the Business Day immediately following the Business Day specified in the Loan Request and (ii) to the extent of any such Dollar funds as shall not be used to purchase EUR, shall procure (by authorising and instructing the Facility Agent accordingly) the payment of such Dollar funds to the Dollar Pledged Account on the Disbursement Date.
|
(d)
|
Upon the date of delivery to the Borrower of the Purchased Vessel, the Facility Agent shall direct that moneys standing to the credit of the Pledged Accounts shall, in the manner set out in the Loan Request and in accordance with the requirements and provisions of the Pledge Agreement, be disbursed as follows:
|
i.
|
in EUR, to the account of the Builder, as designated by the Builder and identified by the Borrower in the Loan Request, to the extent necessary to meet the final instalment of the Contract Price (including any portion thereof attributable to the Buyer's Allowance); and
|
ii.
|
in Dollars, (y) to Hermes in payment of the Second Fee; and (z) to the account of the Borrower, as designated by the Borrower and identified by the Borrower in the Loan Request, in reimbursement of the First Fee and in respect of any additional amounts standing to the Dollar Pledged Account as of the date of such disbursement,
|
(a)
|
Subject to Section 3.1(b), the Borrower shall repay the Loan in 24 equal semi-annual instalments, with the first instalment to fall due on the date falling six (6) months after the Disbursement Date and the final instalment to fall due on the date of Final Maturity.
|
(b)
|
If, on the date of delivery to the Borrower of the Purchased Vessel, the outstanding principal amount of the Loan exceeds the US Dollar Maximum Loan Amount (as a result of a reduction in the Contract Price after the Disbursement Date and before the delivery of the Purchased Vessel), the Borrower shall repay the Loan in an amount equal to such excess within two (2) Business Days after the date of delivery to the Borrower of the Purchased Vessel. Any such partial prepayment shall be applied pro rata in satisfaction of the remaining scheduled repayment instalments of the Loan.
|
(c)
|
No amount repaid by the Borrower pursuant to this Section 3.1 may be re-borrowed under the terms of this Agreement.
|
(a)
|
The Borrower:
|
i.
|
may, from time to time on any Business Day, make a voluntary prepayment, in whole or in part, of the outstanding principal amount of the Loan; provided that:
|
a.
|
all such voluntary prepayments shall require (x) for prepayments on or after the Disbursement Date made prior to delivery to the Borrower of the Purchased Vessel in respect of the advance made on the Disbursement Date, at least two (2) Business Days' prior written notice to the Facility Agent, and (y) for all other prepayments, at least 30 calendar days' prior written notice, if all or any portion of the Loan is a Fixed Rate Loan, and at least five (5) Business Days'
|
b.
|
all such voluntary partial prepayments shall be in an aggregate minimum amount of $10,000,000 and a multiple of $1,000,000 (or in the remaining amount of the Loan) and shall be applied in inverse order of maturity or ratably among all remaining instalments, as the Borrower shall designate to the Facility Agent, in satisfaction of the remaining repayment instalments of the Loan; and
|
ii.
|
shall, immediately upon any acceleration of the repayment of the instalments of the Loan pursuant to Section 8.2 or 8.3 or the mandatory prepayment of the Loan pursuant to Section 9.2, repay the Loan.
|
(b)
|
If, by reason of a Change in Law, it becomes unlawful under any applicable law (i) for a Lender to be subject to a commitment to make available to the Borrower such Lender's portion of the Loan hereunder as provided in Section 2.2, (ii) for a Lender to make or hold its portion of the Loan in its Lending Office, (iii) for a Lender to receive a payment under this Agreement or any other Loan Document or (iv) for a Lender to comply with any other material provision of, or to perform its obligations as contemplated by, this Agreement or any other Loan Document, the Lender affected by such Change in Law may give written notice (the "Illegality Notice") to the Borrower and the Facility Agent of such Change in Law, including reasonable details of the relevant Change of Law. Any Illegality Notice must be given by a Lender no later than 120 days after such Lender first obtains actual knowledge or written notice of the relevant Change in Law.
|
(c)
|
If an affected Lender delivers an Illegality Notice prior to the Disbursement Date, then, subject to Section 11.17, (1) whilst the arrangements contemplated by the following clause (2) have not yet been completed and the Commitment of such Lender has not been formally cancelled, such Lender shall not be obliged to fund its Commitment and (2) the Borrower shall be entitled at any time within 50 days after receipt of such Illegality Notice to replace such Lender with one or more financial institutions (I) reasonably acceptable to the Facility Agent, (II) meeting the criteria set out in Section 2.2 of the Terms and Conditions, (III) acceptable to Hermes and (IV) in the case of a replacement of an Option A Lender, reasonably acceptable to KfW; provided that any such assignment shall be either (x) in the case of a single assignment, an assignment of all of the rights and obligations of the assigning Lender under this Agreement or (y) in the case of more than one assignment, an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that collectively cover all of the rights and obligations of the assigning Lender under this Agreement. If, at the end of such 50-day period, the Borrower has not so replaced such affected Lender as
|
(d)
|
If an affected Lender delivers an Illegality Notice on or following the Disbursement Date, then the Borrower shall have the right, but not the obligation, exercisable at any time within 50 days after receipt of such Illegality Notice (the "Option Period"), either (1) to prepay the portion of the Loan held by such Lender in full on or before the expiry of the Option Period, together with all unpaid interest and fees thereon accrued to but excluding the date of such prepayment, or (2) to replace such Lender on or before the expiry of the Option Period with one or more financial institutions (I) reasonably acceptable to the Facility Agent, (II) meeting the criteria set out in Section 2.2 of the Terms and Conditions, (III) acceptable to Hermes and (IV) in the case of a replacement of an Option A Lender, reasonably acceptable to KfW; provided that (x) in the case of a single assignment, any such assignment shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or, in the case of more than one assignment, an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that collectively cover all of the rights and obligations of the assigning Lender under this Agreement and (y) no Lender shall be obligated to make any such assignment as a result of an election by the Borrower pursuant to this Section 3.2(d) unless and until such Lender shall have received one or more payments from one or more Assignee Lenders and/or the Borrower in an aggregate amount at least equal to the portion of the Loan held by such Lender, together with all unpaid interest and fees thereon accrued to but excluding the date of such assignment (and all other amounts then owing to such Lender under this Agreement).
|
(e)
|
Each prepayment of the Loan made pursuant to this Section 3 shall be without premium or penalty, except as may be required by Section 4.4. No amounts prepaid by the Borrower may be re-borrowed under the terms of this Agreement except as provided in Section 3.7 and the last paragraph of Section 9.1 (which follows Section 9.1.11).
|
(a)
|
At any time prior to the Disbursement Date, the Borrower may elect to pay interest on the Loan at the Floating Rate by written notice (the "Floating Rate Election Notice") to the Facility Agent. If the Floating Rate Election Notice is delivered by the Borrower at least 63 days prior to the actual Disbursement Date, the Borrower shall not incur any liability to make any payments pursuant to Section 4.4 or to incur any other indemnity or compensation obligation. If the Floating Rate Election Notice is delivered by the Borrower less than 63 days prior to the actual Disbursement Date, the Borrower shall either (i) pay such compensation to the relevant Lender as required by, and in accordance with, Section 4.4 to the extent such Lender incurs a loss as set out in Section 4.4 or (ii) extend the Disbursement Date to a date that falls at least 63 days after the Floating Rate Election Notice was first delivered by the Borrower. In the event that the Borrower elects the option under the foregoing clause (ii), the Borrower shall deliver a Loan Request to the Facility Agent in accordance with Section 2.5(a), and the proposed Disbursement Date set out in such Loan Request shall be a date that falls at least 63 days after the Floating Rate Election Notice was first delivered by the Borrower.
|
(b)
|
If the Borrower has not elected the Floating Rate prior to the Disbursement Date as permitted by Section 3.3.2(a), the Borrower may elect, by written notice to the Facility Agent no later than 2:00 p.m. Frankfurt time 32 days prior to the end of an Interest Period and subject to Section 4.4, to pay interest on the Loan for the remainder of the term of the Loan at the Floating Rate, with effect from the end of that Interest Period.
|
(c)
|
Any election made under any of Section 3.3.2(a) or Section 3.3.2(b) may only be made one time during the term of the Loan and shall be irrevocable.
|
(a)
|
each Repayment Date;
|
(b)
|
the date of any prepayment, in whole or in part, of principal outstanding on the Loan (but only on the principal so prepaid);
|
(c)
|
on that portion of the Loan the repayment of which is accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such acceleration; and
|
(d)
|
in the case of any interest on any principal, interest or other amount owing under this Agreement or any other Loan Document that is overdue, from time to time on demand of the Facility Agent until such overdue amount is paid in full.
|
(a)
|
Dollar deposits in the relevant amount and for the relevant Interest Period are not available to each Reference Bank in its relevant market, or
|
(b)
|
by reason of circumstances affecting the Reference Banks' relevant markets, adequate means do not exist for ascertaining the interest rate applicable hereunder to LIBO Rate loans for the relevant Interest Period, or
|
(c)
|
the cost to Option B Lenders that in the aggregate hold more than 50% of the aggregate outstanding principal amount of the Loan then held by Option B Lenders, if any Lender shall have entered into an Option B Interest Make-Up Agreement, of obtaining matching deposits in the relevant interbank market for the relevant Interest Period would be in excess of the LIBO Rate (provided that no Option B Lender may exercise its rights under this Section 4.2(c) for amounts up to the difference between such Option B Lender's cost of obtaining matching deposits on the date such Option B Lender becomes a Lender hereunder less the LIBO Rate on such date),
|
(a)
|
subject any Lender to any taxes, levies, duties, charges, fees, deductions or withholdings of any nature with respect to its portion of the Loan or any part thereof imposed, levied, collected, withheld or assessed by any jurisdiction or any political subdivision or taxing authority thereof (other than (i) taxes as to which such Lender is indemnified under Section 4.6 and (ii) taxes excluded from the indemnity set forth in Section 4.6); or
|
(b)
|
change the basis of taxation to any Lender (other than a change in taxation on the overall net income of any Lender) of payments of principal or interest or any other payment due or to become due pursuant to this Agreement; or
|
(c)
|
impose, modify or deem applicable any reserve or capital adequacy requirements (other than the increased capital costs described in Section 4.5 and the reserve costs described in Section 4.7) or other banking or monetary controls or requirements which affect the manner in which a Lender shall allocate its capital resources to its obligations hereunder or require the making of any special deposits against or in respect of any assets or liabilities of, deposits with or for the account of, or loans by, any Lender (provided that such Lender shall, unless prohibited by law, allocate its capital resources to its obligations hereunder in a manner which is consistent with its present treatment of the allocation of its capital resources); or
|
(d)
|
impose on any Lender any other condition affecting its portion of the Loan or any part thereof,
|
(a)
|
if at the time interest is calculated at the Floating Rate on such Lender's portion of the Loan, any conversion or repayment or prepayment or acceleration of the principal amount of such Lender's portion of the Loan on a date other than the scheduled last day of an Interest Period or otherwise scheduled date for repayment or payment (in each case, including payments made in accordance with Section 3.1(b), but excluding any prepayment made following an election by the Borrower to effect a prepayment pursuant to Section 3.2(d), or any repayment pursuant to Section 9.1.12, by reason of a Non-Borrower Related Change in Law);
|
(b)
|
if at the time interest is calculated at the Fixed Rate on such Lender's portion of the Loan, any repayment or prepayment or acceleration of the principal amount of such Lender's portion of the Loan, other than any repayment made on the date scheduled for such repayment (in each case, excluding any prepayment made following an election by the Borrower to effect a prepayment pursuant to Section 3.2(d), or any repayment pursuant to Section 9.1.12, by reason of a Non-Borrower Related Change in Law);
|
(c)
|
without prejudice to the rights of the Borrower to elect an option under Section 3.3.2(a), an election by the Borrower of the Floating Rate in accordance with Section 3.3.2(a) (where the Disbursement Date is a date that falls less than 63
|
(d)
|
a reduction or termination of the Commitments by the Borrower pursuant to Section 2.3(b)(i);
|
(e)
|
the Loan not being made in accordance with the Loan Request therefor due to the fault of the Borrower or as a result of any of the conditions precedent set forth in Article V not being satisfied; or
|
(f)
|
any prepayment of the Loan by the Borrower pursuant to Section 3.7;
|
a.
|
if at that time interest is calculated at the Floating Rate on such Lender's portion of the Loan, pay directly to the Facility Agent for the account of such Lender an amount (the "Floating Rate Indemnity Amount") equal to the amount, if any, by which:
|
(i)
|
interest calculated at the Floating Rate which such Lender would have received on its share of the amount of the Loan subject to such Funding Losses Event for the period from the date of receipt of any part of its share in the Loan to the last day of the applicable Interest Period,
|
(ii)
|
the amount which such Lender would be able to obtain by placing an amount equal to the amount received by it on deposit with a leading bank in the appropriate interbank market for a period starting on the Business Day following receipt and ending on the last day of the applicable Interest Period; or
|
b.
|
if at that time interest is calculated at the Fixed Rate on such Lender's portion of the Loan, pay to the Facility Agent the sum of:
|
(A)
|
an amount equal to the amount, if any, by which:
|
(i)
|
interest calculated at the rate per annum equal to (a) the CIRR which such Lender would have received on its share of the amount of the Loan subject to such Funding Losses Event minus (b) the administrative margin of 0.20%, for the period from the date of receipt of any part of its share of the Loan to the final scheduled date for the repayment of Loan in full pursuant to Section 3.1,
|
(ii)
|
the amount by which such Lender would be able to obtain by placing for such remaining period an equal amount to the amount received by it on deposit and receiving interest equal to the money market rate then applicable to Dollars on the Reuters page "ICAP1" (the "Reinvestment Rate"),
|
(B)
|
an amount equal to the Floating Rate Indemnity Amount (and assuming for the purpose of this calculation that the interest on the Loan is calculated at the Floating Rate and not the Fixed Rate).
|
(a)
|
pay directly to the relevant authority the full amount required to be so withheld or deducted;
|
(b)
|
promptly forward to the Facility Agent an official receipt or other documentation satisfactory to the Facility Agent evidencing such payment to such authority; and
|
(c)
|
pay to the Facility Agent for the account of the Lenders such additional amount or amounts as is necessary to ensure that the net amount actually received by each Lender will equal the full amount such Lender would have received had no such withholding or deduction been required.
|
(a)
|
the principal amount of the Loan outstanding on such day; and
|
(b)
|
the remainder of (x) a fraction the numerator of which is the rate (expressed as a decimal) at which interest accrues on the Loan for such Interest Period as provided in this Agreement (less, if applicable, the Floating Rate Margin) and the denominator of which is one minus any increase after the Effective Date in the effective rate (expressed as a decimal) at which such reserve requirements are imposed on such Lender minus (y) such numerator; and
|
(c)
|
1/360.
|
(a)
|
Unless otherwise expressly provided in this Agreement or any other Loan Document, all payments by the Borrower in respect of amounts of principal, interest and fees or any other applicable amounts owing to the Lenders hereunder shall be made by the Borrower to the Facility Agent for the account of the Lenders entitled to receive such payments and ratably in accordance with the respective amounts then due and payable to the Lenders. All such payments required to be made to the Facility Agent shall be made, without set-off, deduction or counterclaim, not later than 11:00 a.m., New York time, on the date due, in same day or immediately available funds through the New York Clearing House Interbank Payments System (or such other funds as may be customary for the settlement of international banking transactions in Dollars), to such account as the Facility Agent shall specify from time to time by notice to the Borrower. Funds received after that time shall be deemed to have been received by the Lenders on the next succeeding Business Day.
|
(b)
|
i.
|
Each Option A Lender hereby instructs the Facility Agent to remit all payments of interest made with respect to any portion of the Loan held by such Option A Lender to KfW (A) less (x) the Fixed Rate Margin and (y) the CIRR administrative fee of 0.20% but plus (z) an agreed KfW margin, if interest on the portion of the Loan made by that Lender is then calculated at the Fixed Rate, or (B) less (x) the Floating Rate Margin but plus (y) an agreed KfW margin, if interest on that portion of the Loan is then calculated at the Floating Rate.
|
ii.
|
Each Option B Lender hereby instructs the Facility Agent, with respect to any portion of the Loan held by such Option B Lender, to pay directly to such Option B Lender interest thereon at the Fixed Rate or the Floating Rate (whichever is applicable), on the basis that, if interest on such portion of the Loan is then calculated at the Fixed Rate, such Option B Lender will, where amounts are payable to the KfW by that Option B Lender under the CIRR Agreement, account directly to the KfW on behalf of the Federal Republic of Germany for any such amounts payable by that Lender under the CIRR Agreement to which such Lender is a party.
|
(c)
|
The Facility Agent shall promptly (but in any event on the same Business Day that the same are received or, as contemplated in clause (a) of this Section, deemed received) remit in same day funds to each Lender its share, if any, of such payments received by the Facility Agent for the account of such Lender without any set-off, deduction or counterclaim. All interest and fees shall be computed on the basis of the actual number of days (including the first day but excluding the last day) occurring during the period for which such interest or fee is payable over a year comprised of 360 days. Whenever any payment to be made shall otherwise be due on a day which is not a Business Day, such payment shall (except as otherwise
|
(a)
|
the Recovering Lender shall, within three (3) Business Days, notify details of the receipt or recovery to the Facility Agent;
|
(b)
|
the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Lender would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with the said Section 4.8, without taking account of any taxes which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
|
(c)
|
the Recovering Lender shall, within three (3) Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Lender as its share of any payment to be made, in accordance with any applicable provisions of this Agreement.
|
(a)
|
each Sharing Lender shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Lender an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Lender for its proportion of any interest on the Sharing Payment which that Recovering Lender is required to pay) (the "Redistributed Amount"); and
|
(b)
|
solely as between the Borrower and each relevant Sharing Lender, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by the Borrower.
|
(a)
|
This Section 4.10 shall not apply to the extent that the Recovering Lender would not, after making any payment pursuant to this Section 4.10, have a valid and enforceable claim against the Borrower.
|
(b)
|
A Recovering Lender is not obliged to share with any other Lender any amount which the Recovering Lender has received or recovered as a result of taking legal or arbitration proceedings, if:
|
i.
|
it notified the other Lender of the legal or arbitration proceedings; and
|
ii.
|
the other Lender had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
|
(e)
|
If the Borrower becomes a US Tax Obligor or the Facility Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:
|
|
(i)
|
where the Borrower is a US Tax Obligor and the relevant Lender is KfW IPEX, the date of this Agreement;
|
|
(ii)
|
where the Borrower is a US Tax Obligor on a date an assignment or transfer is made pursuant to Section 11.11.1 and the relevant Lender is an Assignee Lender that becomes a Lender in accordance with Section 11.11.1, the date on which such Assignee Lender becomes a Lender;
|
|
(iii)
|
where the Borrower is not a US Tax Obligor, the date of a request from the Facility Agent,
|
|
(A)
|
a withholding certificate on Form W-8 (or any successor form), Form W-9 (or any successor form) or any other relevant form; or
|
|
(B)
|
any withholding statement or other document, authorisation or waiver as the Facility Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.
|
|
(f)
|
The Facility Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the Borrower.
|
|
(g)
|
If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Facility Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Facility Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Facility Agent). The Facility Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the Borrower.
|
|
(h)
|
The Facility Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Facility Agent shall not be liable for any action taken by it under or in connection with paragraph (e), (f) or (g) above.
|
(a)
|
a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorised to act with respect to this Agreement and each other Loan Document and as to the truth and completeness of the attached:
|
i.
|
resolutions of its Board of Directors then in full force and effect authorising the execution, delivery and performance of this Agreement and each other Loan Document, and
|
ii.
|
Organic Documents of the Borrower,
|
(b)
|
a Certificate of Good Standing issued by the relevant Liberian authorities in respect of the Borrower.
|
(a)
|
Watson, Farley & Williams LLP, counsel to the Borrower, as to Liberian Law, covering the matters set forth in Exhibit B-1 hereto;
|
(b)
|
Norton Rose Fulbright LLP, counsel to the Facility Agent and the Lenders, covering the matters set forth in Exhibit B-2 hereto;
|
(c)
|
Norton Rose Fulbright LLP, counsel to the Facility Agent and the Lenders as to German law, an opinion addressed to the Facility Agent and the Lenders covering the matters set forth in Exhibit B-3 hereto;
|
(d)
|
Clifford Chance US LLP, United States tax counsel to the Facility Agent for the benefit of Lenders, covering the matters set forth in Exhibit B-4 hereto; and
|
(e)
|
if requested by a Lender at least 90 days prior to the expected Disbursement Date in order to comply with Article 194 of the Regulation (EU) No 575/2013 (CRR), a single legal opinion (for the benefit of all the Lenders notwithstanding that not all the Lenders have requested the same) on matters of German law related to the validity and enforceability of the Hermes Insurance Policy,
|
(a)
|
The Facility Agent or the Hermes Agent shall have received the Hermes Insurance Policy duly issued; and
|
(b)
|
Hermes shall not have, prior to the advance of the Loan, delivered to the Facility Agent or the Hermes Agent any notice that the Federal Republic of Germany has determined that the Loan is excluded from cover under the Hermes Insurance Policy.
|
(a)
|
the representations and warranties set forth in Article VI (excluding, however, those set forth in Section 6.10) shall be true and correct in all material respects except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct, with the same effect as if then made; and
|
(b)
|
no Default and no Prepayment Event and no event which (with notice or lapse of time or both) would become a Prepayment Event shall have then occurred and be continuing.
|
(a)
|
certified as true (by the Builder) copies of the reimbursement request and supporting documents received by the Builder from the Borrower pursuant to Article XVII.1(b) of the Construction Contract in relation to the incurred Buyer's Allowance;
|
(b)
|
a copy of the final invoice from the Builder showing the amount of the Contract Price (including the Buyer's Allowance) and the portion thereof payable to the Builder on the Delivery Date under the Construction Contract; and
|
(c)
|
appropriate evidence of all payments made by the Borrower to the Builder on or prior to the Disbursement Date under the Construction Contract in respect of the Contract Price (including, without limitation, the twenty per cent (20%) equity payment thereunder).
|
(a)
|
contravene the Borrower's Organic Documents;
|
(b)
|
contravene any law or governmental regulation of any Applicable Jurisdiction except as would not reasonably be expected to result in a Material Adverse Effect;
|
(c)
|
contravene any court decree or order binding on the Borrower or any of its property except as would not reasonably be expected to result in a Material Adverse Effect;
|
(d)
|
contravene any contractual restriction binding on the Borrower or any of its property except as would not reasonably be expected to result in a Material Adverse Effect; or
|
(e)
|
result in, or require the creation or imposition of, any Lien on any of the Borrower's properties except: (i) as would not reasonably be expected to result in a Material Adverse Effect or (ii) or Liens created under the Loan Documents.
|
(a)
|
legally and beneficially owned by the Borrower or one of the Borrower's wholly owned Subsidiaries,
|
(b)
|
registered in the name of the Borrower or one of the Borrower's wholly owned Subsidiaries under the Bahamian or Maltese flag or such other flag as the parties may mutually agree,
|
(c)
|
classed as required by Section 7.1.4(b),
|
(d)
|
free of all recorded Liens, other than Liens permitted by Section 7.2.3,
|
(e)
|
insured against loss or damage in compliance with Section 7.1.5, and
|
(f)
|
exclusively operated by or chartered to the Borrower or one of the Borrower's wholly owned Subsidiaries.
|
(a)
|
as soon as available and in any event within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, a copy of the Borrower's report on Form 10-Q (or any successor form) as filed by the Borrower with the SEC for such Fiscal Quarter, containing unaudited consolidated financial statements of the Borrower for such Fiscal Quarter (including a balance sheet and profit and loss statement) prepared in accordance with GAAP, subject to normal year-end audit adjustments;
|
(b)
|
as soon as available and in any event within 120 days after the end of each Fiscal Year of the Borrower, a copy of the Borrower's annual report on Form 10-K (or any successor form) as filed by the Borrower with the SEC for such Fiscal Year, containing audited consolidated financial statements of the Borrower for such Fiscal Year prepared in accordance with GAAP (including a balance sheet and profit and loss statement) and audited by PricewaterhouseCoopers LLP or another firm of independent public accountants of similar standing;
|
(c)
|
together with each of the statements delivered pursuant to the foregoing clause (a) or (b), a certificate, executed by the chief financial officer, the treasurer or the corporate controller of the Borrower, showing, as of the last day of the relevant Fiscal Quarter or Fiscal Year compliance with the covenants set forth in Section 7.2.4 (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Facility Agent);
|
(d)
|
as soon as possible after the occurrence of a Default or Prepayment Event, a statement of the chief financial officer of the Borrower setting forth details of such Default or Prepayment Event (as the case may be) and the action which the Borrower has taken and proposes to take with respect thereto;
|
(e)
|
as soon as the Borrower becomes aware thereof, notice of any Material Litigation except to the extent that such Material Litigation is disclosed by the Borrower in filings with the SEC;
|
(f)
|
promptly after the sending or filing thereof, copies of all reports which the Borrower sends to all holders of each security issued by the Borrower, and all registration statements which the Borrower or any of its Subsidiaries files with the SEC or any national securities exchange; and
|
(g)
|
such other information respecting the condition or operations, financial or otherwise, of the Borrower or any of its Subsidiaries as any Lender through the Facility Agent may from time to time reasonably request;
|
(a)
|
in the case of the Borrower, the maintenance and preservation of its corporate existence (subject to the provisions of Section 7.2.6);
|
(b)
|
in the case of the Borrower, maintenance of its qualification as a foreign corporation in the State of Florida;
|
(c)
|
the payment, before the same become delinquent, of all taxes, assessments and governmental charges imposed upon it or upon its property, except to the extent being diligently contested in good faith by appropriate proceedings;
|
(d)
|
compliance with all applicable Environmental Laws;
|
(e)
|
compliance with all anti-money laundering laws and Anti-Corruption Laws applicable to the Borrower, including by not making or causing to be made any offer, gift or payment, consideration or benefit of any kind to anyone, either directly or indirectly, as an inducement or reward for the performance of any of the transactions contemplated by this Agreement to the extent the same would be in contravention of such applicable laws; and
|
(f)
|
the Borrower will maintain in effect policies and procedures designed to procure compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions.
|
(a)
|
from the Delivery Date, cause the Purchased Vessel to be exclusively operated by or chartered to the Borrower or one of the Borrower's wholly owned Subsidiaries, provided that the Borrower or such Subsidiary may charter out the Purchased Vessel (i) to entities other than the Borrower and the Borrower's wholly owned Subsidiaries and (ii) on a time charter with a stated duration not in excess of one year;
|
(b)
|
from the Delivery Date, cause the Purchased Vessel to be kept in such condition as will entitle her to classification by a classification society of recognised standing;
|
(c)
|
on the Delivery Date, provide the following to the Facility Agent with respect to the Purchased Vessel:
|
(d)
|
within seven days after the Delivery Date, provide the following to the Facility Agent with respect to the Purchased Vessel:
|
(a)
|
Indebtedness secured by Liens of the type described in Section 7.2.3;
|
(b)
|
Indebtedness owing to the Borrower or a wholly owned direct or indirect Subsidiary of the Borrower;
|
(c)
|
Indebtedness incurred to finance, refinance or refund the cost (including the cost of construction) of assets acquired after the Effective Date;
|
(d)
|
Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted to be secured under Section 7.2.3(c), at any one time outstanding not exceeding the greater of (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such Indebtedness, as applicable) (x) 5.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter and (y) $735,000,000; and
|
(e)
|
obligations in respect of Hedging Instruments entered into for the purpose of managing interest rate, foreign currency exchange or commodity exposure risk and not for speculative purposes.
|
(a)
|
Liens on assets (including, without limitation, shares of capital stock of corporations and assets owned by any corporation that becomes a Subsidiary of the Borrower after the Effective Date) acquired after the Effective Date (whether by purchase, construction or otherwise) by the Borrower or any of its Subsidiaries (other than (x) an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, after three months after the acquisition of a Vessel, owns a Vessel free of any mortgage Lien), which Liens were created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such assets, so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each such Lien is created within three months after the acquisition of the relevant assets;
|
(b)
|
the Construction Mortgage but only to the extent that the same is discharged on the Delivery Date;
|
(c)
|
in addition to other Liens permitted under this Section 7.2.3, Liens securing Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted under Section 7.2.2(d), at any one time outstanding not exceeding the greater of (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such indebtedness, as applicable) (x) 5.0% of the total assets of the Borrower and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter or (y) $735,000,000, provided that, with respect to each such item of Indebtedness, the fair market value of the assets subject to Liens securing such Indebtedness (determined at the time of the creation of such Lien) shall not exceed two times the aggregate principal amount of such Indebtedness (and for purposes of this clause (c), the fair market value of any assets shall be determined by (i) in the case of any Vessel, by an Approved Appraiser selected by the Borrower and (ii) in the case of any other assets, by an officer of the Borrower or by the board of directors of the Borrower);
|
(d)
|
Liens on assets acquired after the Effective Date by the Borrower or any of its Subsidiaries (other than by (x) any Subsidiary that is an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, owns a Vessel free of any mortgage Lien) so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each of such Liens existed on such assets before the time of its acquisition and was not created by the Borrower or any of its Subsidiaries in anticipation thereof;
|
(e)
|
Liens on any asset of any corporation that becomes a Subsidiary of the Borrower (other than a corporation that also becomes a Subsidiary of an Existing Principal Subsidiary) after the Effective Date so long as (i) the acquisition or creation of such corporation by the Borrower is not otherwise prohibited by the terms of this Agreement and (ii) such Liens are in existence at the time such corporation
|
(f)
|
Liens securing Government-related Obligations;
|
(g)
|
Liens for taxes, assessments or other governmental charges or levies not at the time delinquent or thereafter payable without penalty or being diligently contested in good faith by appropriate proceedings;
|
(h)
|
Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue or being diligently contested in good faith by appropriate proceedings;
|
(i)
|
Liens incurred in the ordinary course of business in connection with workers' compensation, unemployment insurance or other forms of governmental insurance or benefits;
|
(j)
|
Liens for current crew's wages and salvage;
|
(k)
|
Liens arising by operation of law as the result of the furnishing of necessaries for any Vessel so long as the same are discharged in the ordinary course of business or are being diligently contested in good faith by appropriate proceedings;
|
(l)
|
Liens on Vessels that:
|
(m)
|
normal and customary rights of set-off upon deposits of cash or other Liens originating solely by virtue of any statutory or common law provision relating to bankers' liens, rights of set-off or similar rights in favour of banks or other depository institutions;
|
(n)
|
Liens in respect of rights of set-off, recoupment and holdback in favour of credit card processors securing obligations in connection with credit card processing services incurred in the ordinary course of business; and
|
(o)
|
Liens on cash or Cash Equivalents securing obligations in respect of Hedging Instruments permitted under Section 7.2.2(e) or securing letters of credit that support such obligations.
|
(a)
|
Net Debt to Capitalisation Ratio, as at the end of any Fiscal Quarter, to be greater than 0.625 to 1.
|
(b)
|
Fixed Charge Coverage Ratio to be less than 1.25 to 1 as at the last day of any Fiscal Quarter.
|
(c)
|
Stockholders' Equity to be less than, as at the last day of any Fiscal Quarter, the sum of (i) $4,150,000,000 plus (ii) 50% of the consolidated net income of the Borrower and its Subsidiaries for the period commencing on January 1, 2007 and ending on the last day of the Fiscal Quarter most recently ended (treated for these purposes as a single accounting period, but in any event excluding any Fiscal Quarters for which the Borrower and its Subsidiaries have a consolidated net loss).
|
(a)
|
the Borrower or any direct or indirect wholly owned Subsidiary of the Borrower; and
|
(b)
|
other Investments by the Principal Subsidiaries in an aggregate amount not to exceed $100,000,000 at any time outstanding.
|
(a)
|
any such Subsidiary may (i) liquidate or dissolve voluntarily into, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 7.2.7; and
|
(b)
|
so long as no Event of Default has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such
|
(a)
|
sales of assets (including, without limitation, Vessels) so long as at the time of any such sale:
|
(b)
|
sales of capital stock of any Principal Subsidiary of the Borrower so long as a sale of all of the assets of such Subsidiary would be permitted under the foregoing clause (a);
|
(c)
|
sales of capital stock of any Subsidiary other than a Principal Subsidiary;
|
(d)
|
sales of other assets in the ordinary course of business; and
|
(e)
|
sales of assets between or among the Borrower and Subsidiaries of the Borrower.
|
(a)
|
generally fail to pay, or admit in writing its inability to pay, its debts as they become due;
|
(b)
|
apply for, consent to, or acquiesce in, the appointment of a trustee, receiver, sequestrator or other custodian for it or any of its property, or make a general assignment for the benefit of creditors;
|
(c)
|
in the absence of such application, consent or acquiescence, permit or suffer to exist the appointment of a trustee, receiver, sequestrator or other custodian for it or for a substantial part of its property, and such trustee, receiver, sequestrator or other custodian shall not be discharged within 60 days, provided that in the case of such an event in respect of the Borrower, the Borrower hereby expressly authorises the Facility Agent and each Lender to appear in any court conducting any relevant proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents;
|
(d)
|
permit or suffer to exist the commencement of any bankruptcy, reorganisation, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up or liquidation proceeding, in respect of the Borrower or any of such Subsidiaries, and, if any such case or proceeding is not commenced by the Borrower or such Subsidiary, such case or proceeding shall be consented to or acquiesced in by the Borrower or such Subsidiary or shall result in the entry of an order for relief or shall remain for 60 days undismissed, provided that the Borrower hereby expressly authorises the Facility Agent and each Lender to appear in any court conducting any such case or proceeding during such 60-day period to preserve, protect and defend their respective rights under the Loan Documents; or
|
(e)
|
take any corporate action authorising, or in furtherance of, any of the foregoing.
|
(a)
|
enforcement proceedings in respect of any material assets of the Borrower or such Principal Subsidiary shall have been commenced by any creditor upon such judgment or order and shall not have been stayed or enjoined within five (5) Business Days after the commencement of such enforcement proceedings; or
|
(b)
|
there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect.
|
(a)
|
this Article X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Facility Agent under this Agreement; and
|
(b)
|
Section 11.3 and Section 11.4 shall continue to inure to its benefit.
|
(a)
|
modify any requirement hereunder that any particular action be taken by all the Lenders or by the Required Lenders shall be effective unless consented to by each Lender;
|
(b)
|
modify this Section 11.1 or change the definition of "Required Lenders" shall be made without the consent of each Lender;
|
(c)
|
increase the Commitment of any Lender shall be made without the consent of such Lender;
|
(d)
|
reduce any fees described in Article III payable to any Lender shall be made without the consent of such Lender;
|
(e)
|
extend the Commitment Termination Date of any Lender shall be made without the consent of such Lender;
|
(f)
|
extend the due date for, or reduce the amount of, any scheduled repayment or prepayment of principal of or interest on the Loan (or reduce the principal amount of or rate of interest on the Loan) owed to any Lender shall be made without the consent of such Lender; or
|
(g)
|
affect adversely the interests, rights or obligations of the Facility Agent in its capacity as such shall be made without consent of the Facility Agent.
|
(a)
|
All notices and other communications provided to any party hereto under this Agreement or any other Loan Document shall be in writing, by facsimile or by electronic mail and addressed, delivered or transmitted to such party at its address, facsimile number or electronic mail address set forth below its signature hereto or set forth in the Lender Assignment Agreement or at such other address, or facsimile number as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when transmitted provided it is received in legible form; any notice, if transmitted by electronic mail, shall be deemed given upon acknowledgment of receipt by the recipient.
|
(b)
|
So long as KfW IPEX is the Facility Agent, the Borrower may provide to the Facility Agent all information, documents and other materials that it furnishes to the Facility Agent hereunder or any other Loan Document (and any guaranties, security agreements and other agreements relating thereto), including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other materials, but excluding any such communication that (i) relates to a request for a new, or a conversion of an existing advance or other extension of credit (including any election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due hereunder or any other Loan Document prior to the scheduled date therefor, (iii) provides notice of any Default or Event of Default or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of the Agreement and/or any advance or other extension of credit hereunder (all such non-excluded communications being referred to herein collectively as "Communications"), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Facility Agent at claudia.wenzel@kfw.de (or such other email address notified by the
|
(c)
|
The Borrower agrees that the Facility Agent may make such items included in the Communications as the Borrower may specifically agree available to the Lenders by posting such notices, at the option of the Borrower, on Intralinks or any similar such platform (the "Platform") acceptable to the Borrower. Although the primary web portal is secured with a dual firewall and a User ID/Password Authorisation System and the Platform is secured through a single user per deal authorisation method whereby each user may access the Platform only on a deal-by-deal basis, the Borrower acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided "as is" and "as available" and (iii) neither the Facility Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Facility Agent or any of its Affiliates in connection with the Platform.
|
(d)
|
The Facility Agent agrees that the receipt of Communications by the Facility Agent at its e-mail address set forth above shall constitute effective delivery of such Communications to the Facility Agent for purposes hereunder and any other Loan Document (and any guaranties, security agreements and other agreements relating thereto).
|
(a)
|
except to the extent permitted under Section 7.2.6, the Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of the Facility Agent and each Lender; and
|
(b)
|
the rights of sale, assignment and transfer of the Lenders are subject to Section 11.11.
|
(a)
|
written notice of such assignment or transfer, together with payment instructions, addresses and related information with respect to such Assignee Lender, shall have been given to the Borrower and the Facility Agent by such Lender and such Assignee Lender;
|
(b)
|
such Assignee Lender shall have executed and delivered to the Borrower and the Facility Agent a Lender Assignment Agreement, accepted by the Facility Agent and, if the applicable portion of the Loan is a Fixed Rate Loan, any other agreements required by the Facility Agent or the KfW in connection therewith; and
|
(c)
|
the processing fees described below shall have been paid.
|
(a)
|
no participation contemplated in this Section 11.11.2 shall relieve such Lender from its obligations hereunder;
|
(b)
|
such Lender shall remain solely responsible for the performance of its obligations hereunder;
|
(c)
|
the Borrower and the Facility Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and each of the other Loan Documents;
|
(d)
|
no Participant, unless such Participant is an Affiliate of such Lender, shall be entitled to require such Lender to take or refrain from taking any action hereunder or under any other Loan Document, except that such Lender may agree with any Participant that such Lender will not, without such Participant's consent, take any actions of the type described in clauses (b) through (f) of Section 11.1;
|
(e)
|
the Borrower shall not be required to pay any amount under Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which it would have been required to pay had no participating interest been sold; and
|
(f)
|
each Lender that sells a participation under this Section 11.11.2 shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts of (and stated interest on) each of the Participant's interest in that Lender's portion of the Loan, Commitments or other interests hereunder (the "Participant Register"). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender may treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes hereunder.
|
(g)
|
KfW IPEX may not sell participating interests pursuant to this Section 11.11.2 that, when taken together with Loans and/or Commitments sold by KfW IPEX pursuant
|
(a)
|
The Hermes Insurance Policy will cover 95% of the Loan.
|
(b)
|
The Hermes Fee will equal 2.37% of the aggregate principal amount of the Loan as at the Delivery Date.
|
(c)
|
The parties have entered into this Agreement on the basis that the Hermes Insurance Policy shall contain the following terms and should such terms not be included within the Hermes Insurance Policy, then the Borrower may cancel the Commitment(s):
|
(i)
|
25% of the Hermes Fee as in effect on the date of issuance of the Hermes Insurance Policy ("First Fee") will be payable to the Hermes Agent or Hermes in Dollars within two (2) Business Days of receipt by the Borrower of demand from the Hermes Agent following the later to
|
(ii)
|
the balance of the Hermes Fee (being the amount thereof under paragraph (b) above less the First Fee) ("Second Fee") will be payable in Dollars to the Hermes Agent or Hermes on the Delivery Date ;
|
(iii)
|
if the Commitments are cancelled in full by the Borrower or the Lenders on or prior to the Delivery Date (including, for the avoidance of doubt, subsequent to disbursement of the Loan and prepayment thereof by the Borrower under Section 3.7), Hermes shall be required to reimburse the Hermes Agent the amount of the First Fee less an administration fee (such administration fee to be no greater than 5% of the amount refunded but in any event not exceeding EUR 2,500);
|
(iv)
|
if the Commitments are cancelled in part by the Borrower on or prior to the Delivery Date (including, for the avoidance of doubt, subsequent to disbursement of the Loan and prepayment thereof by the Borrower under Section 3.7), Hermes shall be required to reimburse the Hermes Agent an amount equal to a corresponding proportion of the First Fee, based on the proportion of the aggregate Commitments prior to such cancellation to the aggregate Commitments after giving effect to such cancellation, less an administration fee (such administration fee to be no greater than 5% of the amount refunded but in any event not exceeding EUR 2,500); and
|
(v)
|
if, after the Delivery Date, the Borrower prepays all or part of the Loan in accordance with this Agreement, Hermes shall be required to reimburse the Hermes Agent an amount equal to a corresponding proportion of the unexpired portion of the Hermes Fee, having regard to the amount of the prepayment and the remaining term of the Loan less the sum of (x) a break funding fee equal to 20% of the unexpired portion of the Hermes Fee and (y) an administration fee (such fee to be no greater than 5% of the amount refunded but in any event not exceeding EUR 2,500).
|
(a)
|
Provided that the Hermes Insurance Policy complies with Section 11.13.1, the Borrower shall pay (a) the First Fee to the Hermes Agent in accordance with section 11.13.1(c)(i) and (b) the Second Fee to the Hermes Agent on the Delivery Date. In each case, if received by the Hermes Agent, the Hermes Agent shall pay such amount to Hermes.
|
(b)
|
Provided that the Hermes Insurance Policy complies with Section 11.13.1, the Borrower shall pay to the Hermes Agent an issue fee of EUR 12,500 for the issue of the Hermes Insurance Policy at the same time that the First Fee is payable.
|
(a)
|
Promptly upon receipt of the Hermes Insurance Policy from Hermes, the Hermes Agent shall (subject to any confidentiality undertakings given to Hermes by the Hermes Agent pursuant to the terms of the Hermes Insurance Policy) send a copy thereof to the Borrower.
|
(b)
|
The Hermes Agent shall perform such acts or provide such information which are, acting reasonably, within its power so to perform or so to provide, as required by Hermes under the Hermes Insurance Policy and as are necessary to ensure that the Lenders obtain the support of Hermes pursuant to the Hermes Insurance Policy.
|
(c)
|
The Hermes Agent shall (in the circumstances described in Section 11.13.1(c)(iii), (iv) or (v)):
|
(i)
|
make written requests to Hermes seeking a reimbursement of the Hermes Fee promptly after the relevant cancellation or prepayment and (subject to any confidentiality undertakings given to Hermes by the Hermes Agent pursuant to the terms of the Hermes Insurance Policy) provide a copy of the request to the Borrower;
|
(ii)
|
use its reasonable endeavours to maximise the amount of any reimbursement of the Hermes Fee to which the Hermes Agent is entitled;
|
(iii)
|
pay to the Borrower the full amount of any reimbursement of the Hermes Fee that the Hermes Agent receives from Hermes within two (2) Business Days of receipt with same day value; and
|
(iv)
|
relay the good faith concerns of the Borrower to Hermes regarding the amount it is required to pay to Hermes or the amount of any reimbursement to which the Hermes Agent is entitled, it being agreed that the Hermes Agent's obligation shall be no greater than simply to pass on to Hermes the Borrower's concerns.
|
(d)
|
Each Lender will co-operate with the Hermes Agent, the Facility Agent and each other Lender, and take such action and/or refrain from taking such action as may be reasonably necessary, to ensure that the Hermes Insurance Policy and each CIRR Agreement continue in full force and effect and shall indemnify and hold harmless each other Lender in the event that the Hermes Insurance Policy or such CIRR Agreement (as the case may be) does not continue in full force and effect due to its gross negligence or wilful default.
|
(a)
|
the government of the Federal Republic of Germany, the Federal Audit Court or any authorised representatives specified by these bodies shall be authorised at any time to inspect and make or demand copies of the records, accounts, documents and other deeds of any or all of the Lenders relating to this Agreement;
|
(b)
|
in the course of its activity as the Facility Agent, the Facility Agent may:
|
|
(i)
|
provide the government of the Federal Republic of Germany with information concerning the transactions to be handled by it under this Agreement; and
|
|
(ii)
|
disclose information concerning the subsidised transaction contemplated by this Agreement in the context of internationally agreed consultation/notification proceedings and statutory specifications, including information received from the Lenders relating to this Agreement; and
|
(c)
|
the Facility Agent and (to the extent the Lenders have entered into an Option A Refinancing Agreement with KfW) the Lenders are entitled to disclose to KfW:
|
|
(i)
|
circumstances pertaining to the Loan, proper repayment and collateralisation;
|
|
(ii)
|
extraordinary events which may jeopardise the proper servicing of the Loan;
|
|
(iii)
|
any information required by KfW with respect to the proper use of any refinancing funds granted to the respective Lender in respect of the Loan; and
|
|
(iv)
|
the Loan Documents;
|
(a)
|
If the provisions of Section 3.2(c), 3.2(d) or 9.1.11 apply (and having regard to clause (b) below), the Facility Agent, the Borrower and the Lenders (or, in the case of Section 3.2(c) or 3.2(d), any affected Lender) shall discuss in good faith (but without obligation) for a period (the "Mitigation Period") of not less than 30 days (and which in the case of Section 3.2(d) shall commence on the first day of the 50-day period referred to in that Section and, in the case of Section 9.1.11, shall run concurrently with the 30 day period referred to in that Section) after (x) the date on which the Illegality Notice is given or (y) the date of Section 9.1.11 becomes applicable, as the case may be:
|
(i)
|
in the case of Section 3.2(c) or 3.2(d), what steps may be open to the relevant Lender to mitigate or remove such circumstances (including, without limitation, the possibility of assigning the Lender’s Commitment to an Affiliate or another Lending Office); and
|
(ii)
|
in the case of Section 9.1.11, the circumstances in which Section 9.1.11 has become applicable and whether there are any steps or actions which can be taken to remove the effect of Section 9.1.11 and/or reinstate the Hermes Insurance Policy.
|
(b)
|
To the extent required by or considered necessary by any Party, the Lenders (and, in the case of Section 3.2(c) or 3.2(d), any affected Lender) shall use commercially reasonable efforts to include Hermes in all foregoing discussions.
|
(c)
|
If an Illegality Notice shall be given by any Lender during the period falling 20 days prior to the anticipated Delivery Date, the affected Lender will use all reasonable efforts to accelerate the mitigation steps of the type described or to be
|
ROYAL CARIBBEAN CRUISES LTD.
|
||
By: /s/ Antje M. Gibson
|
||
Name:
|
Antje M. Gibson
|
|
Title:
|
VP & Treasurer
|
|
Address: 1050 Caribbean Way
|
||
Miami, Florida 33132
|
||
Facsimile No.: (305) 539-6400
|
||
Email:
|
agibson@rccl.com
|
|
bstein@rccl.com
|
||
Attention: Vice President, Treasurer
|
||
With a copy to: General Counsel
|
||
KFW IPEX-BANK GMBH, as Hermes Agent,
|
|||
Facility Agent and Lender
|
|||
Commitment
|
|||
100% of the US Dollar
|
By: /s/ Claudia Wenzel
|
||
Maximum Loan
|
Name:
|
Claudia Wenzel
|
|
Amount
|
Title:
|
Vice President
|
|
By: /s/ Markus Lutz
|
|||
Name:
|
Markus Lutz
|
||
Title:
|
Vice President
|
||
Address: Palmengartenstrasse 5-9
|
|||
D-60325 Frankfurt am Main
|
|||
Germany
|
|||
Facsimile No.: +49 (69) 7431 3768
|
|||
Email: claudia.wenzel@kfw.de
|
|||
Attention: Maritime Industries
|
|||
With a copy to: Credit Operations
|
|||
Facsimile No.: +49 (69) 7431 2944
|
Attention:
|
[Name]
|
[Title]
|
Amount to be Transferred
|
Settlement Instructions
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Royal Caribbean Cruises Ltd.
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By: ____________________________
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Name:
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Title:
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To the Lenders party to the Credit Agreement referred to below and to KfW IPEX-Bank GmbH as Facility Agent
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A.
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The Credit Agreement; and
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B.
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An Account Pledge Agreement dated ____________ (the “Account Pledge Agreement”) made between the Borrower, the Facility Agent and the Lenders respecting the Pledged Accounts described therein.
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1.
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The Borrower is a corporation duly incorporated, validly existing under the Business Corporation Act and in good standing under the law of the Republic of Liberia;
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2.
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The Borrower has full right, power and authority to enter into, execute and deliver the Documents and to perform each and all of its obligations under the Documents;
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3.
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Each of the Documents has been executed and delivered by a duly authorized signatory of the Borrower;
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4.
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Each of the Documents constitutes the legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms;
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5.
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Neither the execution nor delivery of either of the Documents, nor the transactions contemplated therein, nor compliance with the terms and conditions thereof, will contravene any provisions of Liberian law or violate any provisions of the Articles of Incorporation (inclusive of any articles of amendment thereto) or the Bylaws of the Borrower;
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6.
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No consent or approval of, or exemption by, any Liberian governmental or public bodies and authorities are required in connection with the execution and delivery by the Borrower of either of the Documents;
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7.
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It is not necessary to file, record or register either of the Documents or any instrument relating thereto or effect any other official action in any public office or elsewhere in the Republic of Liberia to render any such document enforceable against the Borrower;
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8.
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Assuming neither of the Documents has been executed in the Republic of Liberia, no stamp or registration or similar taxes or charges are payable in the Republic of Liberia in respect of either of the Documents or the enforcement thereof in the courts of Liberia other than customary court fees payable in litigation in the courts of Liberia;
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9.
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The Borrower is not required or entitled under any existing applicable law or regulation of the Republic of Liberia to make any withholding or deduction in respect of any tax or otherwise from any payment which it is or may be required to make under either of the Documents;
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10.
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Assuming that the shares of the Borrower are not owned, directly or indirectly, by the Republic of Liberia or any other sovereign under Liberian law, neither the Borrower nor the property or assets of the Borrower is immune from the institution of legal proceedings or the obtaining or execution of a judgment in the Republic of Liberia;
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11.
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Under Liberian law the choice by the Borrower of English law to govern the Credit Agreement is a valid choice of law and the irrevocable submission thereunder by the Borrower to the jurisdiction of the courts of England is a valid submission to such courts; and
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11.
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Under Liberian law the choice by the Borrower of law of the Federal Republic of Germany to govern the Account Pledge Agreement is a valid choice of law and the submission thereunder by the Borrower to the jurisdiction of Frankfurt am Main, Germany is a valid submission to such jurisdiction.
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NORTON ROSE FULBRIGHT
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[●]
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Norton Rose Fulbright LLP
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3 More London Riverside
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London SE1 2AQ
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United Kingdom
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Tel +44 20 7283 6000
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To the Lenders party to the Credit Agreement referred to below and to KfW IPEX-Bank GmbH as Agent
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Fax +44 20 7283 6500
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DX 85 London
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nortonrosefulbright.com
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KfW IPEX-Bank GmbH
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Palmengartenstrasse 5-9
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Direct line
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60325 Frankfurt am Main
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+44 20 7444 3436
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Germany
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Email
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Simon.Hartley@nortonrosefulbright.com
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Your reference
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Our reference
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SRH/LN87935
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1
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Background
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1.1
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This opinion is given at the request of our client KfW IPEX-Bank GmbH (the Agent) in relation to the English law aspects of a loan transaction (the Transaction) by which certain banks party thereto as lenders (the Lenders) have made available a credit facility of up to EUR€[],000,000 to Royal Caribbean Cruises Ltd. as borrower (the Company) pursuant to a Credit Agreement (as defined in Schedule 1).
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1.2
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We have acted as English legal advisers to the Agent and the Lenders in relation to the Transaction.
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1.3
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We have examined the copy documents relating to the Transaction governed by English law described in Schedule 1 (the English Documents).
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1.4
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For the purpose of giving this opinion, we have examined no other documents and have undertaken no other enquiries.
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1.5
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Our opinions are given in part 2. Part 3 explains their scope, part 4 describes the assumptions on which they are made and part 5 contains the qualifications to which they are subject.
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2
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Opinions
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2.1
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The obligations which the Company is expressed to assume in each English Document to which it is a party constitute its legal, valid, binding and enforceable obligations.
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2.2
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The effectiveness or admissibility in evidence of the English Documents is not dependent on:
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(a)
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any registrations, filings, notarisations or similar actions; or
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(b)
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any consents, authorisations, licences or approvals of general application from governmental, judicial or public bodies.
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2.3
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No stamp, registration or similar duty or tax is payable in respect of the creation of any English Document.
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2.4
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The choice of English law to govern the English Documents and any non-contractual obligations connected to the English Documents is effective.
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2.5
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The agreement by the Company in an English Document that the English courts have jurisdiction in respect of that document or any non-contractual obligations connected to that document is effective.
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3
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Scope
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3.1
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This opinion and any non-contractual obligations connected with it are governed by English law and are subject to the exclusive jurisdiction of the English courts.
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3.2
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This opinion is given only in relation to English law as it is understood at the date of this opinion. We have no duty to keep you informed of subsequent developments which might affect this opinion.
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3.3
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If a question arises in relation to a cross-border transaction, it may not be the English courts which decide that question and English law may not be used to settle it.
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3.4
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We express no opinion on, and have taken no account of, the laws of any jurisdiction other than England. In particular, we express no opinion on the effect of documents governed by laws other than English law.
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3.5
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We express no opinion on matters of fact.
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3.6
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Our opinion is limited to the matters expressly stated in part 2, and it is not to be extended by implication. In particular, we express no opinion on the accuracy of the assumptions contained in part 4. Each statement which has the effect of limiting our opinion is independent of any other such statement and is not to be impliedly restricted by it. Paragraph headings are to be ignored when construing this opinion.
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3.7
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Our opinion is given solely for the benefit of the Agent and the Lenders from time to time (as that expression is defined in the Credit Agreement) acting through the Agent. It may not be relied on by any other person.
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3.8
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This opinion may not be disclosed to any person other than:
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(a)
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those persons (such as auditors or regulatory authorities) who, in the ordinary course of business of the Agent and the Lenders, have access to their papers and records or are entitled by law to see them; and
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(b)
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those persons who are considering becoming Lenders,
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4
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Assumptions
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4.1
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Each person which is expressed to be party to the English Documents:
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(a)
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is duly incorporated and is validly existing;
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(b)
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is not the subject of any insolvency proceedings (which includes those relating to bankruptcy, liquidation, administration, administrative receivership and reorganisation) in any jurisdiction;
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(c)
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has the capacity to execute each English Document to which it is expressed to be a party and to perform the obligations it is expressed to assume under it;
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(d)
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has taken all necessary corporate action to authorise it to execute each English Document to which it is expressed to be a party and to perform the obligations it is expressed to assume under it; and
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(e)
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has duly executed each English Document to which it is expressed to be a party.
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4.2
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The English Documents have been or will be executed in the form provided to us. There has been no variation, waiver or discharge of any of the provisions of the English Documents.
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4.3
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None of the English Documents is (wholly or in part) void, voidable, unenforceable, ineffective or otherwise capable of being affected as a result of any vitiating matter (such as mistake, misrepresentation, duress, undue influence, fraud, breach of directors’ duties, illegality or public policy) that is not clear from the terms of the English Documents.
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4.4
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The Company is solvent both on a balance sheet and on a cash-flow basis, and will remain so immediately after the Transaction has been completed.
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4.5
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There are no other facts relevant to this opinion that do not appear from the documents referred to in part 1.
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4.6
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No law of any jurisdiction other than England has any bearing on the opinion contained in part 2
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5
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Qualifications
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5.1
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The enforcement of contractual obligations is subject to the general principles of contractual liability, in particular the matters described in the following paragraphs.
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5.2
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Apart from claims for the payment of debts (including the repayment of loans), contractual obligations are normally enforced by an award of damages for the loss suffered as a result of a breach of contract; and recoverable loss is restricted by principles such as causation, remoteness and mitigation. The specific performance of contractual obligations is a discretionary remedy and is only available in limited circumstances.
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5.3
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Contractual obligations can be discharged by matters such as breach of contract or frustration. Claims may become time-barred or may be subject to defences such as set-off or estoppel.
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5.4
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The interpretation of the meaning and legal effect of any particular provision of a contract is a matter of judgment, which will ultimately be determined by the relevant tribunal. In addition, a document may be capable of being rectified if it does not express the common intention of the parties.
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5.5
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English law has traditionally been protective of guarantors and has developed a number of defences for them. Although guarantees generally purport to exclude many of these defences, a guarantee, and any third party security generally, will be construed in favour of the guarantor or grantor of security where possible.
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5.6
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A clause in a contract which excludes or limits an obligation of one of the parties or the liability for breach of that obligation will be construed restrictively, against the person who wishes to rely on it. In addition, a contractual provision which excludes the liability of a trustee (including a security trustee) may not be enforceable in all circumstances.
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5.7
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If a provision of a contract is particularly one-sided it is more likely to be construed against the party who wishes to rely on it.
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5.8
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A provision of a contract may be ineffective if it is incomplete or uncertain or provides for a matter to be determined by future agreement.
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5.9
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A provision of a contract which provides for the conclusive certification or determination of a matter by one party may not prevent judicial inquiry into the merits of the claim.
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5.10
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A provision for the payment of a sum in the event of a breach of contract is unenforceable if it is construed as a penalty rather than a genuine pre-estimate of the loss likely to be suffered as a result of the breach and, if that sum has been paid, it may be repayable in whole or in part.
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5.11
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A contractual provision for the forfeiture of a proprietary or possessory interest, such as the rights of a lessee under a chattel lease, may be overridden.
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5.12
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An undertaking to assume liability for stamp duty or similar taxes may be ineffective.
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5.13
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As a general principle, an authority or power of attorney can be revoked at any time, and will be revoked if the donor enters into insolvency proceedings. This is so even if the authority or power is expressed to be irrevocable and the revocation is therefore made in breach of contract. The main exception to this principle is where the authority or power is granted as part of a security arrangement.
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5.14
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A provision of a contract which purports to exclude the effect of prior or subsequent agreements, representations or waivers may be ineffective.
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5.15
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A provision of a contract which provides what will happen in the event of an illegality (including a provision for severance of part of the contract) may not be enforceable.
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5.16
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An indemnity in respect of criminal liability may not be enforceable.
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5.17
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An indemnity for the costs of litigation may not be enforceable.
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5.18
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The parties’ rights are subject to laws affecting creditors’ rights generally, such as those relating to insolvency (which includes bankruptcy, liquidation, administration, administrative receivership and reorganisation). These laws can apply to persons incorporated or resident outside England, as well as to those incorporated or resident in England.
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5.19
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In particular, on an insolvency:
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(a)
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contractual and other personal rights will reduce proportionately with all similar rights, and contractual provisions which would conflict with this principle (such as a pro rata sharing clause) are ineffective;
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(b)
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transactions entered into in the period before the insolvency starts (that period generally being no longer than two years) may be set aside in certain circumstances; and
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(c)
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the ability of a secured creditor to enforce its security may be subject to limitations, for instance in an administration.
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5.20
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The law which governs a contract and any connected non-contractual obligations is not determinative of all issues which arise in connection with that contract. For instance:
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(a)
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it may not be relevant to the determination of proprietary issues (such as those relating to security);
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(b)
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rules which are mandatory (which includes public policy rules) in a jurisdiction which is connected with the contract or in the jurisdiction where the issue is decided may be applied regardless of the provisions of the contract; and
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(c)
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in insolvency proceedings, the law governing those proceedings may override the law governing the contract.
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5.21
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There are circumstances in which the English courts may, or must, decline jurisdiction or stay proceedings. Additionally, it may not be possible to commence proceedings because of an inability to comply with service of process requirements. These problems are less likely to occur where one or more of the parties is domiciled in the European Union.
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5.22
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The English courts have a discretion to accept jurisdiction in an appropriate case even though there is an agreement that other courts have (exclusive or non-exclusive) jurisdiction. This is less likely to occur where the other courts are in the European Union.
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5.23
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The jurisdiction of the English courts in relation to insolvency matters is not dependent on the submission of the parties to the jurisdiction. The precise scope of that jurisdiction depends on the nature of the insolvency procedure in question.
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1
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A credit agreement dated [l] (the Credit Agreement) made between (1) Royal Caribbean Cruises Ltd. as borrower (the Borrower), (2) KfW IPEX-Bank GmbH (KfW IPEX) as initial mandated lead arranger, facility agent, Hermes agent, original lender and (c) the financial institutions party thereto as lenders from time to time, to provide a term loan to partly finance the construction of Hull no. S-713 at Meyer Werft GmbH & Co. KG.
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2
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Two fee letters both dated [l] made between (1) KfW IPEX and (2) the Borrower in relation to certain of the fees payable in respect of the Credit Agreement.
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Norton Rose Fulbright (Germany) LLP
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Bleichenbrucke 10 (Kaufmannshaus)
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20354 Hamburg
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Tel +49 40 970799-0
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Norton Rose Fulbirhgt (Germany) LLP - Bleichenbrucke 10 (Kaufmannshaus) 2034 Hamburg
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Fax +49 40 970799-111
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nortonrosefulbright.com
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KfW IPEX-Bank GmbH
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(in its capacity as Facility Agent and Hermes Agent) | From Timo Noftz | |
Palmengartenstraße 5-9
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Tel +49 40 970799 199
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60325 Frankfurt am Main
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Fax +49 40 970 799 111
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Germany
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Email timo.noftz@nortonrosefulbright.com | |
Our ref TNOF/HA02161 | ||
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[●] |
1.1
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Unless otherwise defined herein or unless the context otherwise requires, capitalised terms defined in the Document shall have the same meanings when used in this opinion.
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1.2
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Headings and sub-headings in this opinion are for ease of reference only and do not affect the interpretation of this opinion.
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1.3
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In this opinion as well as in the Document which is in the English language, German legal concepts are expressed and described in the English language rather than in their original German form and such expressions and/or descriptions may not be identical in their meaning to the underlying German law concepts. Accordingly, any issues of interpretation arising in respect of this opinion or the Document which is in the English language will be determined by German courts in accordance with German law and we express no opinion on the interpretation that German courts may give to any such
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2.1
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In connection with this opinion, we have examined only the Document but not any other document or agreement referred to therein. Accordingly, we express no opinion as to any agreement, instrument or other document other than the Document as specified herein or as to any provision of the Document to the extent it cross-refers to an agreement, instrument or other document.
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2.2
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In giving this opinion we have relied exclusively upon the Document and have not independently verified its accuracy. This opinion is based upon and confined to the facts at the date hereof and to the law of the Federal Republic of Germany presently in force, as currently applied and construed by the German courts. This opinion does not relate to facts or laws or to the interpretation of laws after the date hereof and we do not assume any obligation to update this opinion or to inform you of any changes to facts or laws. We have made no investigation of, and this opinion does not address, the laws of any other jurisdiction.
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2.3
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We have not been responsible for, or assisted in, the investigation or verification of any statements of fact (including statements as to any law other than German law or the reasonableness of any assumption or statement of opinion).
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2.4
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We express no opinion as to matters of fact or the valuation of assets provided as security nor does this opinion address matters relating to tax.
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3.1
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Veracity and general matters
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3.1.1
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The Document submitted to us as photocopy or via fax or email conforms to the respective original Document; the original of such photocopy is an authentic and complete document.
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3.1.2
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Where the Document has been examined by us in draft or specimen form, it will be or has been executed or delivered, as applicable, in the form of that draft or specimen (i.e. no change has been or will be made to the terms and conditions thereof).
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3.1.3
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There are no written or oral agreements or arrangements which would expand, modify, or otherwise affect the respective rights, duties, and/or obligations of the parties as set forth in the Document and which would have an effect on the opinions rendered herein.
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3.1.4
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The Document has not been supplemented, amended or revoked after its date and prior to the execution hereof but remains accurate in all respects.
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3.1.5
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All signatures are genuine.
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3.1.6
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Any natural person acting as representative for the parties in the context of the execution of the Document was of sound mind when executing it.
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3.1.7
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Upon execution of the Document, the relevant parties and their respective directors, employees, agents and advisers did not act in bad faith or fraud, mistake or undue influence.
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3.1.8
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The other documents referred to in the Document are legal, valid and binding and their provisions do not contradict any of the provisions of the Document.
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3.1.9
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Each of the statements of matters of fact contained in the Document in relation to each of the parties to the Document is true, accurate and complete at all relevant times.
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3.1.10
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All of the representations and warranties given by any of the parties to the Document are, and, at the time they are repeated, will be at all relevant times, true and accurate and any representation or warranty given by any of the parties to the Document that it is not aware of or has no notice of any act, matter, thing or circumstance means that the same does not exist or has not occurred, as the case may be.
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3.1.11
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All consents, authorisations, licenses, approvals, registrations or other actions by or with any governmental authority (other than in Germany) required to be obtained for the execution and/or performance of the Document have been obtained.
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3.1.12
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All parties to the Document have all public permits, licenses and approvals to run, perform and carry on their relevant business.
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3.2
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Corporate power, authorisation and execution
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3.2.1
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Each of the parties to the Document is a duly incorporated or, as the case may be, established, and validly existing legal entity under its governing laws.
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3.2.2
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The Document has been duly executed by each party thereto.
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3.3
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Document
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3.3.1
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The Pledgor was, at the time of the Document coming into effect (Wirksamwerden) and, subject to the pledge granted under the Document, will remain the unrestricted owner of the assets, claims and/or rights serving as security under the Document which at the time were and, subject as aforesaid, will remain unencumbered.
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3.3.2
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The bank accounts and other assets referred to in the Document exist and are held by the Pledgor, the bank account details are correct and the other assets are also sufficiently and correctly described.
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3.3.3
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Any disputes arising in connection with the Document will be decided by German courts applying German conflict of law rules. We have not examined whether courts outside Germany may have jurisdiction regarding such disputes, nor do we express any opinion as to how such courts would construe and interpret the Document.
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3.3.4
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The Secured Obligations are validly existing, binding and enforceable obligations of the relevant persons towards the Pledgees.
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3.3.5
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That each and every clause of the Document has been specifically negotiated (individuell ausgehandelt) as between the parties thereto and has not been unilaterally imposed (einseitig gestellt) on any party by any other party thereto.
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3.3.6
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That the pledges created under the Document have been notified by the Pledgor to the relevant account bank in accordance with the Document.
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3.4
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Solvency and relationship to other creditors
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3.4.1
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As of the date of this opinion and as a consequence of doing any act or thing which the Document contemplates, permits or requires, the Pledgor is not, nor will be deemed, unable to pay any of its debts when due (Zahlungsunfähigkeit) and the Pledgor is not facing over-indebtedness (Überschuldung) or is subject to imminent illiquidity (drohende Zahlungsunfähigkeit).
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3.4.2
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No party to the Document is aware of any circumstances which would indicate that or give reason to enquire further whether or not any party to the Document is or would be, close to a situation of being presumably unable to pay its debts as they fall due (including German law drohende Zahlungsunfähigkeit or wirtschaftlicher Zusammenbruch).
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3.4.3
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As of the date of this opinion, no insolvency or winding up resolution or petition has been presented or an order has been made or rejected on grounds of insufficiency of assets (Abweisung mangels Masse) by a court or by directly applicable law for the winding up, dissolution or administration of the Pledgor.
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3.4.4
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No party enters into the Document or any transaction contemplated therein with bad faith or with the intention to prejudice, defraud or damage any creditor of the Pledgor.
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4.1
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The Document, if implemented in accordance with its terms and subject to the in rem prior pledge of the Account Bank (as defined in the Document) under its standard terms and conditions, validly creates the security interest described therein.
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4.2
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The obligations of the Pledgor under the Document are legal, valid, binding and enforceable in accordance with their terms.
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4.3
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The Document is in proper form for its enforcement in the German courts (except for the fact that it is written in a language other than the German language which will require an official translation to be obtained for enforcement purposes).
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4.4
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No consent, authorisation, license, or approval of governmental or public bodies in Germany is required with regard to the entry into and the performance of the Document by the parties thereto.
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4.5
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To ensure the validity, enforceability and admissibility in evidence of the Document, it is not necessary that it or any other instrument be notarised, filed, recorded, registered or enrolled in any court, public office or elsewhere in Germany.
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5.1
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General matters
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5.1.1
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We are lawyers admitted to practise in the Federal Republic of Germany. Therefore, this opinion is expressly limited to German law as applied by German courts and as it exists at the date hereof. It is given on the basis that it will be governed by and construed in accordance with German law. We have not examined any other laws and we do not express any opinion on such other laws. We have assumed, however, that there is no provision in such other laws which could affect this opinion.
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5.1.2
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This opinion is based on the facts existing on the date hereof of which we are aware and the opinions set forth herein shall not be deemed to relate to facts and conditions prevailing after the date hereof.
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5.1.3
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There is no final judicial precedent in Germany for holding facsimile or e-mail communications legal, valid and binding in all circumstances (in particular where there is a legal requirement for written form, a signature by way of a facsimile signing has been held insufficient to satisfy such requirement). However, where there are no particular legal requirements as to the form of such communication (unless the requirement of actual receipt has been validly waived), the German Federal Court of Justice (Bundesgerichtshof, the Supreme Court) has held that any facsimile communication received by the addressee will be deemed validly given (widerlegbare Vermutung).
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5.1.4
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The authenticity or completeness, and therefore the value as evidence, of any message or data in electronic form (even if saved on a medium of data storage) is in principle capable of being challenged as evidence in German courts on, inter alia, the grounds that:
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(a) its content; and/or
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(b) the sender; and/or
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(c) the date and time of its issue,
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may have been altered or manipulated and cannot be certified.
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5.1.5
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Any authorisation or instruction provided for in the Document may be revoked or terminated for important cause (aus wichtigem Grund) even if such authorisation or instruction has been made irrevocably. The same is true for any appointment of an agent under the Document.
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5.1.6
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Any provision in the Document providing that certain certifications or determinations will be conclusive, binding and authoritative will not necessarily prevent judicial enquiry into the merits of any claim by any aggrieved party.
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5.1.7
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Where contractual or legal consequences are attached to the occurrence or non-occurrence of an event a German court would have discretion to decide (upon evidence being brought to it) whether such event has occurred.
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5.2
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Enforceability, choice of law
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5.2.1
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The term “enforceable” or any other word of similar import, where used herein, means that the obligations assumed by any person expressed to be a party to the Document are of a type which the courts of the Federal Republic of Germany generally enforce, subject to and limited by the provisions of any applicable bankruptcy, insolvency, liquidation, reorganisation, moratorium or other laws of general application from time to time in effect relating to or affecting the creditors’ rights and remedies generally.
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5.2.2
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Any enforcement of the Document in the Federal Republic of Germany will be subject to the rules of civil procedure arising by operation of law as applied by German courts or other competent authority of the Federal Republic of Germany.
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5.2.3
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A German court might hold that any provision of the Document stating that any representation or communication shall be deemed to have been made or delivered is void or voidable.
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5.2.4
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Enforceability of contractual obligations can be affected by matters such as breach of contract or frustration (Unmöglichkeit). Claims may be subject to defences such as for instance set-off, rights of retention or estoppel.
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5.2.5
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The German law principle of Treu und Glauben requires that contracts are performed in good faith. For example, a German court may, in certain situations, regard the execution of contractual rights as untimely or abusive. Actions which have to be considered to constitute bad faith or which are contra bonos mores may provide certain rights in favour of a contracting party or may render contracts or commitments void or voidable.
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5.2.6
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Where a party under the Document is vested with discretion or may determine a matter in its opinion, such discretion must be exercised reasonably or such opinion must be based on reasonable grounds, in order for such discretionary decision or opinion to be binding on other parties.
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5.2.7
|
Claims under the Document may become statutorily barred by limitation periods or under the doctrine of waiver (Verwirkung) or may become subject to set-off or counter-claims.
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5.2.8
|
We express no opinion with respect to the enforceability and validity of provisions in the Document to the extent that they may provide for indemnification or reimbursement for losses caused by acts or omissions which the beneficiary of such provisions is directly or indirectly responsible for. This may constitute a violation of Section 254 of the Germany Civil Code (Bürgerliches Gesetzbuch, BGB) (contributory negligence) or Section 276 BGB (prohibition on limitations or exclusions of liability for one’s own wilful behaviour) and may not be enforced by a German court.
|
5.2.9
|
We express no opinion with respect to the limitations of a party’s set-off rights under the Document. Under German law, a right of set-off may be asserted notwithstanding an explicit waiver of such right, provided that the claim to be set-off has been recognised in a final and binding judgment or such claim is undisputed between the parties.
|
5.2.10
|
Provisions in the Document which provide that any determination, certificate or statement of account made or given by any party is to be final, conclusive or binding may not be enforced and will not prevent judicial enquiry into the merits of the matter and the basis on which such determination, certificate or statement of account is made.
|
5.2.11
|
We have not examined whether courts outside Germany may have jurisdiction regarding disputes arising in connection with the Document, nor do we express any opinion as to how such courts would construe and interpret the Document.
|
5.3
|
Priority of security, disposals by grantor of security, pledges
|
5.3.1
|
Pledges under the standard terms and conditions of the Account Bank (as defined in the Document) may rank prior to the pledges of bank accounts under the Document. However, in the acknowledgement to the notice to the Document, the Account Bank (as defined in the Document) undertakes that any rights of pledge under its standard terms and conditions are subordinated to the
|
|
pledges created under the Document. However, please note that such subordination agreement is of contractual nature only and does not change the ranking in rem.
|
5.3.2
|
The assets, claims and/or rights which are subject to a security created by the Document may consist of rights and/or claims against third parties which are subject to contractual or statutory provisions. To the extent they do, the security is subject to the terms of those rights and/or claims and may be subject to the rights and/or claims of those third parties (who may, for instance, have rights of set-off).
|
5.3.3
|
We did not carry out any due diligence investigations with regard to the assets, claims and rights to be transferred, assigned, pledged or otherwise encumbered under the Document. Therefore, no opinion is expressed herein as to the existence of or (unrestricted) title to any of the assets which serve as security under the Document or as to the priority of the security.
|
5.3.4
|
To the extent to which the Document secures the abstract acknowledgement provided for in the Document we note that the creation of an abstract (parallel) debt as basis for accessory security interests (akzessorische Sicherheiten) (such as pledges) has not been the subject of German court rulings. In this regard we have relied on general principles of German law on security interests.
|
5.3.5
|
Pledges of payment claims only become valid under German law if the pledgor in its capacity as creditor of the relevant claim gives notice to the debtor of the claim of the pledge and the identity of the pledge.
|
5.3.6
|
If the performance of an obligation of the Pledgor under or in connection with the Document is contrary to the exchange control regulation of a member state of the International Monetary Fund, that obligation might be unenforceable in the Federal Republic of Germany according to Article VIII Section 2(b) of the International Monetary Fund Agreement. In the case of unenforceability of an obligation, security interests which shall secure this obligation can be unenforceable as well. This is in particular true for accessory security interests (akzessorische Sicherheiten) such as the Document.
|
5.4
|
Security contra bonos mores, excessive security
|
5.4.1
|
The security created under the Document is not valid and enforceable if the granting of such security is “against good morals” (“gegen die guten Sitten”), Section 138 BGB. For example, this may be the case if the security recipient knew or should have known that the borrower for whose debts the security is created is not or will not be able to repay such debt, so that the enforcement of the security is already foreseeable at the time the security is granted and at the same time the security recipient knows or should have known that, as a result thereof, the claims of other third party creditors are jeopardised.
|
5.4.2
|
The granting of security might be against public morals if the grantor of security, due to the granting of several security interests, loses its capacity to (freely) run its business (Knebelung). From the face of the Document, we do not believe that such a situation is given in the matter at hand.
|
5.4.3
|
The Document can be void if it constitutes an initial over-collateralisation (anfängliche Übersicherung) which is so excessive that it must be considered as being “against good morals” (“gegen die guten Sitten”). If at the time of entering into a security agreement it is already certain that the realisable value of the security is significantly out of proportion to the claim secured, then there is a risk that the entire German security would be regarded as an initially excessive collateralisation. The German courts have not given any guidelines as to which loan to security ratio amounts to excessive collateralisation. A decision by the Supreme Court indicates that the loan-to-security ratio would be well beyond the threshold applied to subsequently excessive collateralisation, i.e. more than 150 per cent of the amount of the secured obligations. The actual valuation, however, will be based on the realisable value and therefore needs to take into account any possible discount on the current market value, arising, e.g. from the circumstances of a distress sale. In addition, the over-collateralisation, in order to be regarded as against good morals, must be based on a lender's reprehensible and condemnable state of mind (verwerfliche Gesinnung), which is assumed if a lender, out of self-interest, displays a morally unbearable recklessness as against a borrower.
|
6.1
|
This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters stated herein. In particular, this opinion does not cover any tax-related issues. We undertake no obligation to supplement or amend the opinion expressed herein based on facts, circumstances, or events which only come to our attention after the date hereof. For the purpose of rendering this opinion we have not conducted any investigation as to factual circumstances but have relied exclusively on the Document.
|
6.2
|
This opinion is solely for your benefit and each of your permitted successors and assignees during primary syndication in the next twelve (12) months from the date hereof in connection with the Document and the transactions contemplated thereby. This opinion is not intended to create third party rights pursuant to Section 328 et seq. BGB (Vertrag zugunsten Dritter oder Vertrag mit Schutzwirkung für Dritte) and may not be relied upon by anyone other than you and each of your permitted successors and assignees during primary syndication in the next twelve (12) months from the date hereof.
|
(a)
|
those persons (such as auditors or regulatory authorities) who, in the ordinary course of business of the Facility Agent and the Lenders, have access to their papers and records or are entitled by law to see them; and
|
(b)
|
those persons who are considering becoming Lenders,
|
6.4
|
This opinion and all non-contractual obligations arising out of or in connection with it are governed by and shall be construed in accordance with German law. Exclusive place of jurisdiction is Hamburg, Germany.
|
CLIFFORD CHANCE US LLP
31 WEST 52ND STREET
NEW YORK, NY 10019-6131
TEL +1 212 878 8000
FAX +1 212 878 8375
www.cliffordchance.com
|
|
1Insert prior to the date on which the Loan is made.
|
|
2Insert on and after the date on which the Loan is made.
|
a)
|
the Assignee
|
(i)
|
shall be deemed automatically to have become a party to the Agreement, have all the rights and obligations of a "Lender" under the Agreement and the other Loan Documents as if it were an original signatory thereto to the extent specified in the second paragraph hereof; and
|
(ii)
|
agrees to be bound by the terms and conditions set forth in the Agreement and the other Loan Documents as if it were an original signatory thereto; and
|
b)
|
the Assignor shall be released from its obligations under the Agreement and the other Loan Documents to the extent of the relevant percentage of the [Commitment][Loan] specified in the second paragraph hereof.
|
Amount
of the [Commitment]
[portion of the Loan]
after giving effect to
the assignment
contemplated hereby:
|
||||
[____]
|
[ASSIGNOR]
|
|||
By:
|
||||
Title:
|
||||
[____]
|
[ASSIGNEE]
|
|||
By:
|
||||
Title:
|
REFINANZIERUNGSVERTRAG
vom
zwischen der
KfW
Frankfurt am Main
vertreten durch die
KfW IPEX-Bank GmbH
Frankfurt am Main
("KfW")
und der
[Bank]
("Bank")
im Zusammenhang
mit der Finanzierung
[Bezeichnung des Schiffbauprojektes]
für [Besteller]
Zinsausgleichsgarantie Nr. [•]
|
REFINANCING AGREEMENT
dated
between
KfW
Frankfurt am Main
represented by
KfW IPEX-Bank GmbH
Frankfurt am Main
("KfW")
and
[Bank]
("Bank")
on the financing of
[description of delivery item]
for [buyer]
Interest Make-up Guarantee No .....
|
Übersicht
|
Overview
|
|||||||
1
|
Präambel
|
1
|
Preamble
|
3
|
||||
2
|
Daten des Bau- und Kreditvertrages, sowie der Refinanzierung
|
2
|
Shipbuilding Contract, Loan Agreement and Refinancing data
|
5
|
||||
3
|
Allgemeine Bedingungen
|
3
|
General Terms and Conditions
|
7
|
||||
4
|
Betrag und Verwendungszweck
|
4
|
Amount and purpose
|
7
|
||||
5
|
Auszahlung und Auszahlungsvoraussetzungen
|
5
|
Disbursement and conditions precedent to disbursement
|
8
|
||||
6
|
Zinsen, Gebühren und Berechnung
|
6
|
Interest, charges and calculation
|
9
|
||||
7
|
Rückzahlung und vorzeitige Rückzahlung; Anpassung des
Refinanzierungs-Zinssatzes
|
7
|
Repayment and prepayment; adjustment of the Refinancing Interest Rate
|
11
|
||||
8
|
Sicherheiten
|
8
|
Collateral
|
13
|
||||
9
|
Auskunftspflichten und Prüfungsrechte
|
9
|
Duty to inform and right to inspect
|
14
|
||||
10
|
Kündigung
|
10
|
Termination
|
14
|
||||
11
|
Erklärungen
|
11
|
Representations
|
15
|
||||
12
|
Sonstige Regelungen
|
12
|
Other regulations
|
15
|
||||
Anlage 1:
|
Abrufformular
|
Annex 1:
|
Disbursement Request Form
|
17
|
||||
Anlage 2:
|
Liste der subventionserheblichen Tatsachen für die Gewährung von Zinsausgleichsgarantien im Zusammenhang mit Absatzfinanzierungen für Schiffe
|
Annex 2
|
List of facts relevant to subsidies pertaining to the provision of Interest Make-up Guarantees in connection with ship financing at the CIRR
|
18
|
||||
Anlage 3:
|
Allgemeine Bedingungen für den Zinsausgleich bei chiffsfinanzierungen zum CIRR („AGB")
|
Annex 3
|
General Terms and Conditions for Interest Make-up in Ship Financing Schemes at the CIRR
|
19
|
1.
|
Präambel
|
1.
|
Preamble
|
|
Die Bundesrepublik Deutschland („Bund“), vertreten durch das Bundesministerium für Wirtschaft und Energie und das Bundesministerium der Finanzen, hat zur Unterstützung der Wettbewerbsfähigkeit deutscher Werften im Jahre 2008 das Schiffs-CIRR-Programm („Schiffs-CIRR-Programm“), ein Festsatz-Zinsausgleichssystem, eingeführt.
Der Bund gewährt Kreditinstituten für einen Teil des Zinsrisikos bei der Refinanzierung von CIRR-Krediten eine Zinsausgleichsgarantie („Zinsausgleichsgarantie“), die nach Maßgabe der „Richtlinien für die Übernahme von Gewährleistungen zur Absicherung des Zinsrisikos bei der Refinanzierung von CIRR-Krediten für den Bau von Schiffen (Zinsausgleichsgarantien)“ sowie der zugehörigen Allgemeinen Bedingungen für den Zinsausgleich bei Schiffsfinanzierungen zum CIRR („AGB“) abgewickelt wird.
Die KfW vertritt den Bund als Mandatar und hat ihrerseits die Marktfolge der KfW IPEX-Bank GmbH („IPEX“) mit der Abwicklung des Schiffs-CIRR-Programms beauftragt.
[Die Bank hat als Kreditgeber mit [Kreditnehmer] als Kreditnehmer am [Datum] einen Kreditvertrag abgeschlossen (nachfolgend inklusive Nachträge der „Kreditvertrag“) und dem Kreditnehmer den in Ziff. 2.2 näher bezeichneten Kredit über insgesamt [Kreditbetrag] („Kredit") eingeräumt. Der Kredit dient ausschließlich der Finanzierung des nachfolgend näher bezeichneten Schiffbauprojektes [Endfinanzierung].]
[bei Syndizierung: Am oder um den Tag dieses Vertrages tritt die Bank als neuer Kreditgeber [zusammen mit weiteren Banken] einem am [Datum] abgeschlossenen Kreditvertrag (nachfolgend inklusive Nachträge der „Kreditvertrag“) mit [Agenten] als Facility Agent und ursprünglichem Kreditgeber bei und gewährt dem Kreditnehmer ca. [prozentualer Anteil der Bank] % des in Ziffer 2.2 näher bezeichneten Kredites über insgesamt [Kreditbetrag] („Kredit“). Der Kredit dient ausschließlich der Finanzierung des nachfolgend näher bezeichneten Schiffbauprojektes [Endfinanzierung].]
|
The Federal Republic of Germany („Federal Republic“), represented by the Federal Ministry for Economic Affairs and Energy and by the Federal Ministry of Finance, implemented in 2008 the Shipping-CIRR programme (“Shipping-CIRR Programme”), an interest make-up scheme, to support the competitiveness of German yards.
The Federal Republic grants financial institutions an interest make-up guarantee to cover a portion of the interest rate risk involved in refinancing CIRR loans (“Interest Make-up Guarantee”), which is provided in accordance with the guidelines for the assumption of guarantees to hedge the interest rate risk associated with the refinancing of CIRR shipbuilding loans (interest make up guarantees) and with the related general terms and conditions for interest rate make-up in ship financing schemes at the CIRR (“General Terms”).
KfW is acting as mandatary of the Federal Republic and has for its part assigned the back offices of KfW IPEX-Bank GmbH (“IPEX”) to handle the Shipping-CIRR Programme.
[The Bank, as lender, entered into a loan agreement with [borrower] as borrower as at [date] (hereinafter, including addenda the “Loan Agreement”) and granted the borrower the loan described in more detail in Section 2.2 for a total of [loan amount] (“Loan”). The sole purpose of this Loan is to finance the shipbuilding project described in more detail below [post-delivery financing].]
[in case of syndication: On or about the date thereof, the Bank will accede as new lender [together with other banks] to a loan agreement dated [date] with [agent] being the facility agent and the original lender (hereinafter, including addenda, the “Loan Agreement”) and will grant the borrower approximately [percentage of bank] per cent of the loan described in more detail in Section 2.2 for a total of [loan amount] (“Loan”). The sole purpose of this Loan is to finance the shipbuilding project described in more detail below [post-delivery financing].]
|
[Der Kredit ist unter anderem besichert durch eine Finanzkreditdeckung der Bundesrepublik Deutschland („Hermes-Deckung“)[weitere Sicherheiten]].
Im Rahmen des Schiffs-CIRR-Programms besteht für finanzierende Banken die Möglichkeit eine Refinanzierung durch die KfW zu beantragen. Die Bank hat sich nach Maßgabe von Ziff. 1.2.1. der AGB für diese Refinanzierung entschieden.
Auf dieser Grundlage vereinbaren die Bank und die KfW folgendes:
|
[The Loan will be – inter alia – secured by a Finance Credit Cover of the Federal Republic of Germany (“Hermes Cover”) [further securities].]
Under the Shipping-CIRR Programme financial institutions may request a refinancing by KfW. In accordance with Section 1.2.1. of the General Terms the Bank decided for this refinancing.
On this basis the Bank and KfW hereby agree as follows:
|
2 |
Daten des Schiffbau- und Kreditvertrages sowie der Refinanzierung
|
2 |
Shipbuilding Contract, Loan Agreement and Refinancing data
|
|
2.1 |
Daten des Schiffbauvertrages
|
2.1 |
Shipbuilding Contract data
|
|
2.1.1
|
Verkäufer / Schiffbauunternehmen:
|
2.1.1
|
Seller / Shipbuilder:
|
|
2.1.2
|
Datum des Bauvertrages:
|
2.1.2
|
Date of the Shipbuilding Contract:
|
|
2.1.3
|
Auftragswert:
|
2.1.3
|
Contract Value:
|
|
2.1.4
|
Zahlungsbedingungen:
|
2.1.4
|
Payment Terms:
|
|
2.1.5
|
Käufer / Besteller:
|
2.1.5
|
Customer / Buyer:
|
|
2.1.6
|
Schiffbauprojekt:
|
2.1.6
|
Object of the Shipbuilding Contract:
|
|
2.1.7
|
Voraussichtliche Ablieferung:
|
2.1.7
|
Scheduled Date of Delivery:
|
2.2
|
Daten des Kreditvertrages
|
2.2
|
Loan Agreement data:
|
|
2.2.1
|
Kreditnehmer:
|
2.2.1
|
Borrower:
|
|
2.2.2
|
Kreditwährung:
|
2.2.2
|
Loan Currency:
|
|
2.2.3
|
Finanzierungsstruktur:
|
2.2.3
|
Financing Structure:
|
|
2.2.4
|
Kreditbetrag:
|
2.2.4
|
Loan Amount:
|
|
2.2.5
|
Auszahlungsprofil:
|
2.2.5
|
Disbursement Profile:
|
|
2.2.6
|
Ende der Auszahlungsfrist:
|
2.2.6
|
End of the Disbursement Period:
|
|
2.2.7
|
Kreditlaufzeit / Tilgungsprofil:
|
2.2.7
|
Loan Term / Repayment Profile:
|
|
2.2.8
|
Fälligkeit und Kalkulationsbasis der Zinsen: 1
|
2.2.8
|
Maturity and calculation basis of the Interest2:
|
|
2.3
|
Daten der Zinsausgleichsgarantie und der Refinanzierung
|
2.3
|
Interest Make-up Guarantee and Refinancing data
|
|
2.3.1
|
Maßgeblicher CIRR-Satz:
|
2.3.1
|
Applicable CIRR rate:
|
|
2.3.2
|
Verwaltungskostenpauschale („VWK“):
|
2.3.2
|
Fee for Administrative Expenses (“VWK”):
|
|
2.3.3
|
Marge der KfW (gem. Ziffer 1.2.1.2. Satz 2 AGB) („KfW–Marge“):
|
2.3.3
|
Margin of KfW (pursuant to section 1.2.1.2. sentence 2 General Terms) („KfW Margin“):
|
|
2.3.4
|
Refinanzierungs-Zinssatz (=Maßgeblicher CIRR-Satz abzüglich VWK zzgl. KfW-Marge):
[•] % p.a.
|
2.3.4
|
Refinancing Interest Rate (Applicable CIRR-rate less VWK plus KfW-Margin):
[•] % p.a.
|
|
2.3.5
|
Datum des Antrages der Bank auf Zinsausgleichsgarantie:
|
2.3.5
|
Date of application by the Bank for the Interest Make-up Guarantee:
|
|
2.3.6
|
Spätesttermin gemäß Ziffer 7.2. AGB:
|
2.3.6
|
Latest Date pursuant to section 7.2. General Terms:
|
3
|
Allgemeine Bedingungen
|
3
|
General Terms and Conditions
|
|
Sofern in diesem Vertrag keine anders lautenden Bestimmungen enthalten sind, gelten die als Anlage 3 beigefügten AGB. Mit der Geltung der AGB erklärt sich die Bank mit Unterzeichnung dieses Vertrages ausdrücklich einverstanden. Die Bank hat auch zur Kenntnis genommen, dass der Zinsausgleich der Höhe nach auf maximal 12 % jährlich begrenzt ist (Ziff. 1.1. Satz 4 AGB) und die Bank verpflichtet ist, der KfW etwaige diesen Höchstbetrag übersteigende Zinsdifferenzen zu erstatten.
Änderungen und Ergänzungen dieses Vertrages sowie Erklärungen und Mitteilungen aufgrund dieses Vertrages bedürfen der Schriftform.
|
Insofar as this refinancing agreement (“Agreement”) does not contain any provisions stating otherwise, the General Terms (attached as Annex 3) will apply. By signing this Agreement the Bank expressly declares its consent to the validity of the General Terms. The Bank has also taken note of the fact that the Interest Make-up is limited to a maximum rate of 12 % p.a. (Section 1.1. sentence 4 of the General Terms) and that the Bank is obligated to reimburse to KfW any differences in interest rates beyond this maximum limit.
Amendments or addenda to this Agreement and any statements and notices delivered under this Agreement must be in writing.
|
|||
4
|
Betrag und Verwendungszweck
|
4
|
Amount and purpose
|
|
4.1
|
Die KfW räumt der Bank einen Refinanzierungskredit („Refinanzierungskredit“) in Höhe des Kreditbetrages gem. Ziff. 2.2.4 ein. Inanspruchnahmen unter dem Refinanzierungskredit dienen der Refinanzierung des unter Ziff. 2.2 genannten Kreditvertrages der Bank, den diese an den Kreditnehmer herauslegt und für den im Rahmen des Schiffs-CIRR-Programms eine Garantie übernommen wurde.
|
4.1
|
KfW grants the Bank a refinancing loan (“Refinancing Loan”) in an amount equal to the Loan Amount stated in Section 2.2.4. The funds utilized under the Refinancing Loan serve to refinance the Bank`s Loan Agreement stated in Section 2.2, which the Bank concluded with the Borrower and for which a guarantee has been issued under the Shipping-CIRR Programme.
|
|
4.2
|
Die Bank verwaltet ihren Kredit einschließlich aller Sicherheiten auf eigene Kosten und im eigenen Namen. Bei der Kreditvergabe und Kreditverwaltung einschließlich Einziehung der Kreditforderungen und bei der Sicherheitenverwaltung und –verwertung einschließlich der Wahrnehmung der Rechte, Pflichten und Obliegenheiten aus Exportkreditversicherungen des Bundes handelt die Bank mit banküblicher Sorgfalt. [Die Weisungen des Bundes und die Bedingungen der Hermes-Deckung wird die Bank beachten.]
|
4.2
|
The Bank administers its Loan including all collateral at own expense and on its own behalf. In granting and administering the Loan, including the collection of loan receivables, and in administering and enforcing collateral, including the exercise of rights, obligations and responsibilities in connection with the Federal Republic`s export credit insurance scheme, the Bank will act with the care customary in banking practice. [The Bank will comply with the instructions of the Federal Republic and the conditions of the Hermes Cover.]
|
5
|
Auszahlung und Auszahlungsvoraussetzungen
|
5
|
Disbursement and conditions precedent to
disbursement
|
|||
5.1
|
Die Bank prüft die Erfüllung der Auszahlungsvoraussetzungen unter dem Kreditvertrag und wird der KfW mit Abruf des Refinanzierungskredits schriftlich bestätigen, dass die Auszahlungsvoraussetzungen gemäß Kreditvertrag erfüllt sind und eine Auszahlungsanforderung in entsprechender Höhe unter dem Kreditvertrag vorliegt
|
5.1
|
The Bank will verify the fulfilment of the conditions precedent to disbursement under the Loan Agreement and, upon disbursement of the Refinancing Loan, will provide KfW with a written confirmation that said conditions precedent have been fulfilled in accordance with the Loan Agreement and that a request for disbursement under the Loan Agreement has been submitted in the corresponding amount.
|
|||
5.2
|
Der Abruf gemäß Anlage 1 ist mindestens zwei Bankarbeitstage vor dem angestrebten Auszahlungstermin bei der KfW einzureichen.
|
5.2
|
The request for disbursement stated in Annex 1 must be submitted to KfW at least two Business Days prior to the disbursement date
|
|||
5.3
|
Die Bank wird die Auszahlungen unter dem Refinanzierungskredit unverzüglich an den Kreditnehmer oder das Schiffbauunternehmen weiterleiten.
|
5.3
|
The Bank will transfer the disbursements made under the Refinancing Loan to the Borrower or the Shipbuilder without delay
|
|||
5.4
|
Auszahlungen aus dem Refinanzierungskredit werden in der Kreditwährung gem. Ziff. 2.2.23geleistet.
|
5.4
|
Disbursements made under the Refinancing Loan will be rendered in the Loan Currency as stated in Section 2.2.26
|
|||
5.5
|
Unbeschadet der Bestimmungen der AGB (Ziff. 10.) kann die KfW die Auszahlung verweigern, wenn
|
5.5
|
Notwithstanding the provisions of the General Terms (Section 10.) KfW may refuse disbursement if
|
|||
5.5.1
|
der Betrag des Refinanzierungskredits durch die Auszahlung überschritten würde,
|
5.5.1
|
the amount of the Refinancing Loan would be exceeded as a result of the disbursement;
|
|||
5.5.2
|
das entsprechende Abrufformular nicht mindestens zwei Bankarbeitstage vor dem gewünschten Auszahlungstermin vollständig ausgefüllt und rechtsgültig unterzeichnet bei der KfW vorliegt,
|
5.5.2
|
the corresponding disbursement request form has not been fully completed and duly signed and submitted to KfW at least two Business Days prior to the desired disbursement date;
|
|||
5.5.3
|
Zahlungen der Bank an die KfW unter diesem Vertrag ausstehen und hierfür technische Ursachen nicht erkennbar sind,
|
5.5.3
|
payments owed by the Bank to KfW under this Agreement are outstanding and technical reasons for such non-payment are not identifiable;
|
|||
5.5.4
|
ein außerordentlicher Kündigungsgrund (gem. Ziff. 10) vorliegt,
|
5.5.4
|
there are extraordinary grounds for termination (as stated in Section 10);
|
5.5.5.
|
die gem. Ziff. 8.1 bereitzustellenden Sicherheiten nicht in einer der KfW genehmen Form rechtswirksam bestellt wurden und
|
5.5.5.
|
the collateral to be made available to KfW pursuant to Section 8.1 has not been furnished in a legally effective manner and form satisfactory to KfW and
|
||||
5.5.6.
|
der KfW keine zufrieden stellenden Nachweise über den rechtswirksamen Abschluss dieser Refinanzierungs-vereinbarung und der gem. Ziff. 8.1 abzuschließenden Sicherheitenverträge zur Verfügung gestellt wurden. Zufriedenstellende Nachweise der wirksamen Sicherheitenbestellung sind a) sofern die Sicherheiten ausländischem Recht unterliegen, zufriedenstellende Rechtsgutachten (legal opinions) zu den betreffenden Rechtsordnungen, b) Vorlage der unterzeichneten Sicherheitenverträge, c) Vorlage von zufriedenstellenden Vertretungsnachweisen durch entsprechende Rechtsgutachten (oder gleichwertige Nachweise) für die diese Verträge unterzeichnenden Personen, d) zufriedenstellendes Rechtsgutachten zu der Rechtsordnung, in der die Bank ihren Sitz hat, im Hinblick auf insolvenzrechtliche Fragestellungen im Zusammenhang mit dem Sicherungsgut sowie e) weitere Nachweise (z. B. Registerauszüge).
|
5.5.6.
|
KfW has not been provided with satisfactory evidence of the legally valid and effective conclusion of this agreement and the collateral agreements to be entered into pursuant to Section 8.1. Satisfactory evidence of the legally valid and effective conclusion of the collateral agreements is a) satisfactory legal opinions with respect to the relevant jurisdictions if the collateral is subject to foreign law, b) submission of the signed collateral agreements, c) submission of satisfactory evidence by way of legal opinion (or equivalent evidence) of signatory power of the persons signing these agreements, d) satisfactory legal opinion as to the law of incorporation of the Bank with respect to insolvency related matters on the collateral and e) further evidence (e.g. excerpts from registers).
|
||||
6
|
Zinsen, Gebühren und Berechnung
|
6
|
Interest, charges and calculation
|
||||
Zusätzlich zu den in den AGB (Ziff. 7. [und 4.6.3.]) vorgesehenen Gebühren und Entgelte für die Gewährung der Zinsausgleichsgarantie werden für den Refinanzierungskredit folgende Kosten geltend gemacht:
|
In addition to the charges and fees provided for in the General Terms (Section 7. [and 4.6.3.]) in connection with the granting of the Interest Make-up Guarantee, the following costs will be due and payable for the Refinancing Loan:
|
||||||
6.1
|
Zinsen für Darlehensbeträge unter diesem Refinanzierungskredit werden vom Tage der Auszahlung bis zum Tage der Gutschrift der Rückzahlungsrate auf dem in Ziff. 7.2 dieses Vertrages angegebenen Konto berechnet.
|
6.1
|
Interest for loan amounts under this Refinancing Loan will be calculated from the disbursement date until the date on which the repayment instalment is credited to the account stated in Section 7.2 of this Agreement.
|
||||
6.2
|
Als Zinssatz gilt der Refinanzierungs-Zinssatz gem. Ziff. 2.3.4. Die Zinsen sind an den in Ziff. 2.2.8 genannten Terminen („Zinstermine“) zur
|
6.2
|
The Refinancing Interest Rate stated in Section 2.3.4 will be applied as the interest rate. Interest
|
Zahlung fällig
|
will be due for payment on the dates ("Interest Payment Dates") stated in Section 2.2.8.
|
|||
6.3
|
Für in Anspruch genommene Darlehensbeträge wird das Jahr mit 360 Tagen und der Monat mit der Zahl der tatsächlich anfallenden Tage angesetzt
|
6.3
|
Disbursed loan amounts will be computed on the basis of a 360-day year and the actual number of days elapsed in a month.
|
|
6.4
|
Die Bank zahlt der KfW eine Zusageprovision in Höhe von [•] % jährlich auf den nicht ausgezahlten Betrag des Refinanzierungskredits („KfW-Zusageprovision“). Die KfW-Zusageprovision wird für den Zeitraum zwischen der Unterzeichnung dieses Refinanzierungs-vertrags und der Auszahlung berechnet und ist [Periode gemäß Kreditvertrag] nachträglich zahlbar. Für den Fall, dass der Gesamtbetrag der von der Bank unter dem Kreditvertrag vereinbarten Zusageprovision die KfW-Zusageprovision um mehr als das Doppelte übersteigt, hat die Bank anstatt der KfW-Zusageprovision die Hälfte der vertraglich vereinbarten Zusageprovision an die KfW abzuführen. Die Zahlung der KfW-Zusageprovision erfolgt grundsätzlich an den unter dem Kreditvertrag vereinbarten Fälligkeitsterminen. Die Zahlungspflichten der Bank unter dieser Ziffer 6.4 bestehen unabhängig von einem Zahlungseingang seitens des Kreditnehmers.
|
6.4
|
The Bank will pay KfW a commitment fee at a rate of [•] % per annum on the undisbursed amount of the Refinancing Loan (“KfW Commitment Fee”). The KfW Commitment Fee will be calculated for the period between signing of this Agreement and the disbursement and is payable [period according to Loan Agreement] in arrears. If the total amount of the commitment fee agreed by the Bank under the Loan Agreement exceeds the KfW Commitment Fee by more than double, the Bank will not pay the KfW Commitment Fee to KfW but rather half of the contractually agreed commitment fee. The payment will be principally made to KfW on the due dates agreed under the Loan Agreement. The payment obligations of the Bank under this Section 6.4 continue irrespective of receipt of payment from the Borrower.
|
|
6.5
|
Steuern, Gebühren, Kosten und Aufwendungen (einschließlich anwaltlicher Gebühren und Auslagen), die aus oder im Zusammenhang mit der Vorbereitung, Verhandlung, Unterzeichnung, Registrierung, Durchführung, Änderung, Bewahrung oder Durchsetzung des Refinanzierungsvertrages oder sowie der sich daraus ergebenden Rechte oder eines Sicherheitenvertrages oder anderer dazugehörigen Dokumente anfallen, sind von der Bank zu tragen. Wenn solche Steuern, Gebühren, Kosten oder Aufwendungen von der KfW bezahlt wurden, soll die Bank der KfW unverzüglich nach entsprechender Aufforderung solche Zahlungen rückerstatten.
|
6.5
|
All taxes, fees, costs and expenses (including legal fees and expenses) arising out of or in connection with the preparation, negotiation, execution, registration, implementation, modification, preservation or enforcement of this Refinancing Agreement, the rights hereunder, or any security or document or other document pertaining hereto shall be borne by the Bank. If any such taxes, fees, costs or expenses are paid by KfW, the Bank shall promptly on demand reimburse to KfW.
|
|
6.6
|
Werden Zahlungen für Beträge unter dem Refinanzierungskredit an einem Tag fällig, der
|
6.6
|
If payments of amounts payable under the Refinancing Loan fall due on a day that is not a banking day in Frankfurt am Main [and] [in the event of foreign currency please include city in which the foreign currency account is kept], payment must be rendered on the ensuing banking day in Frankfurt am Main [or] [in the event of foreign currency please include city in which the foreign currency account is kept], (“Business Day”) unless said day falls in the next calendar month. In the latter case the payment
|
kein Bankarbeitstag in Frankfurt am Main oder [im Falle von Fremdwährungen Ort(e) ergänzen] ist, so hat die Zahlung an dem nächsten Bankarbeitstag in Frankfurt am Main und [im Falle von Fremdwährungen Ort(e) ergänzen] zu erfolgen, es sei denn, dieser Tag fällt in den nächsten Kalendermonat. Im letzteren Fall ist die Zahlung am letzten Bankarbeitstag vor dem Fälligkeitstag zu leisten.
|
must be rendered on the latest Business Day prior to the due date.
|
|||||
7
|
Rückzahlung und vorzeitige Rückzahlung; Anpassung des Refinanzierungs-Zinssatzes
|
7
|
Repayment and prepayment; adjustment of the Refinancing Interest Rate
|
|||
7.1
|
Die Bank ist unabhängig von Zahlungen unter dem Kreditvertrag zur Rückzahlung des Refinanzierungskredits nach folgendem Tilgungsplan verpflichtet
|
7.1
|
Regardless of any payments made under the Loan Agreement the Bank undertakes to repay the Refinancing Loan in accordance with the following repayment schedule:
|
|||
Datum4:
|
Betrag:
|
Date7:
|
Amount:
|
|||
7.2
|
Die Bank ist von ihren Zahlungsverpflichtungen aus diesem Vertrag frei, sobald und soweit die betreffenden Beträge in der vereinbarten Währung der KfW ohne Abzüge frei auf ihrem jeweils angegebenen Konto Nr. [Bankverbindung eintragen] zur Verfügung stehen. Sämtliche durch verspäteten Eingang von Zahlungen der KfW entstandene Kosten erstattet die Bank der KfW auf erste Anforderung.
|
7.2
|
The Bank is released from its payment obligations under this Agreement as soon and insofar as the relevant amounts have been made freely available to KfW in the agreed currency without any deductions in the corresponding stated account number [include account details]. The Bank must, upon KfW´s first request, reimburse KfW for any and all costs it incurs owing to late payments
|
|||
7.3
|
Gehen die von der Bank zu zahlenden Beträge nicht valutagerecht ein, so kann die KfW gegenüber der Bank Verzugszinsen in Höhe von 3 % p.a. über dem jeweiligen 3-Monats-EURIBOR/LIBOR gemäß der Reuters-Seiten EURIBOR01/LIBOR01 ab Fälligkeitstermin der jeweiligen Forderung geltend machen. Die Bank wird die Verzugszinsen auf erste Anforderung zahlen.
|
7.3
|
If the payments payable by the Bank are not rendered as at the correct value date, KfW may charge the Bank default interest amounting to 3% p.a above the prevailing 3-month EURIBOR/LIBOR quoted on Reuters Pages EURIBOR01/LIBOR01 starting from the respective payment due date. The Bank undertakes to pay the default interest upon KfW's first request.
|
|||
7.4
|
Sofern die Bank von ihrem Recht zur Rückgabe der Zinsausgleichsgarantie gemäß Ziffer 8.1. der
|
7.4
|
Provided the Bank exercises its right to return the Interest Make-up Guarantee pursuant to Section
|
AGB Gebrauch macht, ist sie zur vorzeitigen Rückzahlung des Refinanzierungskredits berechtigt. Die KfW behält sich jedoch die Geltendmachung von Refinanzierungsschäden, die durch die vorzeitige Rückzahlung ausgelöst werden, vor. Gesetzliche Kündigungsrechte bleiben hiervon unberührt. Wenn die Bank gemäß Ziffer 8.2. der AGB die Rückgabe auf die Garantie beschränkt, so läuft die Refinanzierung unter dieser Vereinbarung grundsätzlich weiter. Die Verpflichtung zur Zahlung einer Nichtabnahmeentschädigung an den Bund gemäß Ziffer 8.3. der AGB wird durch die Regelung dieser Ziffer 7.4 nicht berührt.
|
8.1. of the General Terms, the Bank is entitled to prepay the Refinancing Loan. However, KfW reserves the right to claim funding losses caused by such prepayment. Statutory rights of termination will remain unaffected thereby. If the Bank limits the termination to the Guarantee pursuant to Section 8.2. of the General Terms, the Refinancing Loan as agreed herein will in principle continue. The obligation to pay non-acceptance compensation to the Federal Republic pursuant to Section 8.3. of the General Terms will not be affected by the provision of this Section 7.4.
|
|||
7.5
|
Unabhängig davon, ob die Bank Rechte nach Ziffer 8.1. oder 8.2. der AGB ausgeübt hat oder nicht, gilt für die Weiterleitung von vorzeitigen Rückzahlungen unter dem Kreditvertrag und Verwertungserlösen folgendes: Die Bank wird alle vorzeitigen Rückzahlungen oder Verwertungserlöse aus Sicherheiten unverzüglich nach Eingang an die KfW weiterleiten, solange die KfW Ansprüche aus dieser Vereinbarung geltend machen kann. Diese Weiterleitungspflicht besteht unabhängig von geleisteten bzw. zu leistenden Zahlungen der Bank gemäß dem ursprünglichen Tilgungsplan nach Ziffer 7.1 dieser Vereinbarung. Sie besteht auch unabhängig von dem Grund für den Zahlungseingang. Eingehende Zahlungen unter dieser Ziffer 7.5 werden in umgekehrter zeitlicher Reihenfolge angerechnet und der Tilgungsplan für die turnusmäßigen Zahlungen der Bank nach Ziffer 7.1 entsprechend angepasst.
|
7.5
|
Notwithstanding whether the Bank has or has not exercised rights pursuant to Sections 8.1. or 8.2. of the General Terms, the following applies to the transfer of prepaid amounts under the Loan Agreement and collateral realisation proceeds: The Bank will transfer all prepaid amounts or collateral realisation proceeds to KfW immediately upon receipt if and insofar as KfW can assert claims under this Agreement. This transfer obligation will exist regardless of any payments rendered or to be rendered by the Bank in accordance with the original repayment schedule as stated in Section 7.1 of this Agreement. The obligation also exists regardless of the grounds for receipt of such payment. Incoming payments that fall under this Section 7.5 will be taken into account in inverse chronological order and the repayment schedule will be adjusted accordingly pursuant to Section 7.1 to account for regular payments by the Bank.
|
|
7.6
|
Macht die Bank von ihrem Recht gemäß Ziff. 8.2. der AGB Gebrauch, so ist der Refinanzierungs-Zinssatz nach Ziff. 2.3.4 dieses Vertrags zum Ende der auslaufenden Zinsausgleichsperiode entsprechend anzupassen. Der in diesem Fall anzuwendende Refinanzierungs-Zinssatz entspricht dann dem 3- bzw. 6-Monats-Libor/Euribor5 gemäß der Reuters-Seiten EURIBOR01/LIBOR01 zuzüglich der KfW-Marge
|
7.6
|
If the Bank exercises its right pursuant to Section 8.2. of the General Terms, the Refinancing Interest Rate as stated in Section 2.3.4 of this Agreement must be adjusted accordingly as at the end of the expiring interest make-up period. The Refinancing Interest Rate to be applied in such an event will correspond to the 3-month or 6-month EURIBOR/LIBOR8 quoted on Reuter Pages EURIBOR01/LIBOR01 plus the KfW
|
gem. Ziffer 2.3.3.
|
Margin pursuant to Section 2.3.3
|
|||||
7.7
|
Bei vorzeitiger Beendigung der Kreditvertrages werden die Bank und die KfW in Gespräche darüber eintreten, ob (i) der Refinanzierungskredit fortgeführt wird und (ii) eine weitere Anpassung des Refinanzierungs-Zinssatzes gem. Ziffer 7.6 erforderlich ist.
|
7.7
|
In case of early termination of the Loan Agreement, the Bank and KfW will enter into discussions on whether (i) the Refinancing Loan will be continued and (ii) a further adjustment of the Refinancing Interest Rate pursuant to Section 7.6 is necessary.
|
|||
8
|
Sicherheiten
|
8
|
Collateral
|
|||
8.1
|
Vor der Auszahlung stellt die Bank der KfW zur Sicherung ihrer Ansprüche unter diesem Refinanzierungsvertrag die folgenden Sicherheiten:
|
8.1
|
Prior to disbursement, the Bank will provide to KfW the following collateral to secure KfW's interests under this Agreement:
|
|||
8.1.1
|
Abtretung sämtlicher Ansprüche der Bank gegen den Kreditnehmer aus dem Kreditvertrag [und der/den erstrangigen Schiffshypothek/en];
|
8.1.1
|
Assignment of the Bank’s rights against the Borrower under the Loan Agreement [and the first ranking ship mortgage(s)];
|
|||
8.1.2
|
[Abtretung der Ansprüche der Bank aus der Hermes-Deckung];
|
8.1.2
|
[Assignment of the Bank’s rights under the Hermes Cover];
|
|||
8.1.3
|
[ggf. Abtretung weiterer Sicherheiten].
|
8.1.3
|
[Assignment of further collateral as appropriate].
|
|||
Die KfW ist berechtigt, bei der Hereinnahme der o.g. Sicherheiten die Unterstützung externer Rechtsberater in Anspruch zu nehmen. Die Kosten hierfür sowie sonstige Kosten der Sicherheitenbestellung sind von der Bank zu tragen.
|
In taking the above collateral, KfW may resort to the support of external legal advisers. The cost of this as well as any other costs associated with the perfection of any such collateral will be borne by the Bank.
|
|||||
8.2
|
[Die KfW ist berechtigt, zur Absicherung ihrer Forderungen unter dem Refinanzierungskredit nach Maßgabe ihrer Kriterien für durchleitende Banken im inländischen Fördergeschäft zusätzliche Sicherheiten zu verlangen, sofern dies nach ihrer Einschätzung erforderlich wird. Dies kann auch nachträglich geschehen.
|
8.2
|
[In order to secure its claims under the Refinancing Loan, KfW is entitled to demand additional collateral in accordance with its criteria for on-lending banks in domestic lending business insofar as KfW deems this necessary. This may also take place retroactively.
|
|||
8.3
|
Die unter Ziffer 8.2 genannten zusätzlichen Sicherheiten, insbesondere Pfandrechte, Sicherungsübereignungen, sofern sie nicht per Gesetz auf die KfW übergehen, und solche Sicherheiten, aus denen Ansprüche nicht abgetreten werden können, hält die Bank, soweit sie die Ansprüche aus dem Kreditvertrag sichern, auf eigene Kosten treuhänderisch für die KfW. Die KfW ist jederzeit
|
8.3
|
The Bank holds the additional collateral specified under Section 8.2, in particular pledges, liens, fiduciary transfers of assets - insofar as they are not transferred to KfW by law - and such collateral for which claims cannot be assigned, in trust for KfW at its own expense insofar as the collateral serves to secure claims under the Loan Agreement. KfW is entitled at any time to issue instructions regarding the assets being held in trust. Upon KfW's request, the Bank will provide KfW with disclosure and information of all kinds
|
befugt, im Hinblick auf das Treugut Weisungen zu erteilen. Die Bank wird der KfW auf Verlangen Auskunft und Informationen jeglicher Art über die Sicherheiten geben.]
|
concerning said collateral.]
|
|||
9
|
Auskunftspflichten und Prüfungsrechte
|
9
|
Duty to inform and right to inspect
|
|
Zusätzlich zu den Pflichten der Bank aus Ziffer 11. der AGB gelten folgende Bestimmungen:
|
In addition to the Bank's obligations as stated in Section 11. of the General Terms the following provisions will apply:
|
|||
9.1
|
Die Bank wird der KfW regelmäßig Auskunft über Umstände erteilen, die den Kredit, dessen ordnungsgemäße Rückzahlung oder Besicherung betreffen. Außergewöhnliche Ereignisse, welche die ordnungsgemäße Bedienung des Kredites gefährden können und der Bank bekannt werden, wird die Bank der KfW unaufgefordert unverzüglich mitteilen.
|
9.1
|
The Bank will regularly inform KfW of circumstances pertaining to the Loan, its proper repayment or collateralisation. The Bank must inform KfW immediately and of its own accord about extraordinary events of which it becomes aware that may jeopardise the proper servicing of the Loan.
|
|
9.2
|
Die Bank wird die KfW über alle Änderungen und Ergänzungen des Kreditvertrages unverzüglich informieren.
|
9.2
|
The Bank will notify KfW immediately of all amendments and addenda to the Loan Agreement.
|
|
9.3
|
Die Bank ist verpflichtet, den Kreditnehmer über diesen Vertrag mit der KfW zu informieren.
|
9.3
|
The Bank undertakes to inform the Borrower about this Agreement with KfW.
|
|
9.4
|
Die KfW ist berechtigt, bei der Bank die Verwendung der Refinanzierungen zu prüfen, von der Bank entsprechende Auskünfte zu verlangen und Einblick in die betreffenden Unterlagen zu nehmen.
|
9.4
|
KfW is entitled to inspect the proper use of the refinancing funds at the Bank, to request corresponding information from the Bank and to inspect the loan documents.
|
|
9.5
|
Die Bank übersendet der KfW nach Feststellung, spätestens sechs Monate nach Ablauf des Geschäftsjahres, ihren bestätigten Geschäftsbericht nebst Anhang, Lagebericht und Erläuterungen.
|
9.5
|
The Bank will send KfW its certified annual report including the annex, the management report and the notes following its completion but not later than six months after the end of its financial year.
|
|
10
|
Kündigung
|
10
|
Termination
|
|
Die KfW kann diesen Vertrag unbeschadet der Bestimmungen der AGB aus wichtigem Grunde kündigen, insbesondere wegen
|
Notwithstanding the provisions of the General Terms, KfW may terminate this Agreement for good cause, particularly in the event of -
|
|||
10.1
|
einer erheblichen Verschlechterung der wirtschaftlichen Verhältnisse der Bank;
|
10.1
|
a significant deterioration in the Bank's financial situation;
|
|
10.2
|
einer Verletzung der Zahlungspflichten der Bank (es sei denn, diese basiert auf technischen Problemen im Zahlungsverkehr) oder von
|
10.2
|
a breach of the Bank's payment obligations (unless said breach is attributable to technical problems in payment processing) or duties to
|
Informationspflichten;
|
inform;
|
|||
10.3
|
einer in sonstiger Weise erheblichen Störung der für die Fortführung des Vertragsverhältnisses vorauszusetzenden Vertrauensbeziehung.
|
10.3
|
a disruption in the relationship of trust required for the continuation of the contractual relationship that is significant for another reason.
|
|
11
|
Erklärungen
|
11
|
Representations
|
|
Mit Unterzeichnung versichert die Bank, dass
|
By signing this Agreement, the Bank assures that -
|
|||
a)
|
im Kreditvertrag mindestens der maßgebliche CIRR als Kreditzins vereinbart wurde und
|
a)
|
in the Loan Agreement the Applicable CIRR rate was agreed to be the minimum interest rate and
|
|
b)
|
sie davon Kenntnis genommen hat, dass Tatsachen, von denen die Bewilligung, Gewährung, Rückforderung, Weitergewährung oder das Belassen der Zinsausgleichsgarantie bzw. hieraus ausgezahlter Beträge abhängig ist, subventionserhebliche Tatsachen im Sinne des § 264 StGB sind. Diese Tatsachen sind in der Anlage 2 bezeichnet. Auf die Bestimmungen der §§ 3, 4 und 5 Subventionsgesetz wird besonders hingewiesen.
|
b)
|
it is aware that facts on which the approval, grant, reclamation, renewal or continuation of the Interest Make-up Guarantee and amounts paid under the Interest Make-up Guarantee (as the case may be), depend qualify as facts that are relevant to subsidies within the meaning of Section 264 of the German Criminal Code (Strafgesetzbuch/StGB). These facts are listed in Annex 2. Particular reference is made to the provisions set forth in Sections 3, 4 and 5 of the German Subsidy Act (Subventionsgesetz/SubvG).
|
|
12
|
Sonstige Regelungen
|
12
|
Other regulations
|
|
12.1
|
Dieser Vertrag tritt mit Unterzeichnung in Kraft und endet mit vollständiger Rückzahlung des Refinanzierungskredits einschließlich einer gegebenenfalls erforderlichen Sicherheitenverwertung.
|
12.1
|
This Agreement enters into force and effect upon being signed and ends when the Refinancing Loan has been repaid in full, including any realisation of security that may be necessary.
|
|
[bei Syndizierung: Dieser Vertrag tritt nur dann in Kraft, wenn (a) er unterzeichnet worden ist und (b) das Transfer Certificate (wie im Kreditvertrag definiert) in Bezug auf die übertragene Beteiligung wirksam geworden ist und endet mit vollständiger Rückzahlung des Refinanzierungskredites einschließlich einer gegebenenfalls erforderlichen Sicherheitenverwertung.]
|
[for syndication: This Agreement enters into force an effect upon (a) being signed and (b) the transfer certificate (as defined in the Loan Agreement) in relation to the transferred commitment has become effective and ends when the Refinancing Loan has been repaid in full, including any realisation of security that may be necessary.]
|
|||
12.2
|
Dieser Vertrag unterliegt deutschem Recht. Zu Informationszwecken wurde das Dokument ins Englische übersetzt. Mit Ausnahme des Abrufformulars (Annex 1) ist die deutsche Version
|
12.2
|
The Agreement is governed by German law. It has been translated into English for information purposes only and except for the disbursement request form (Annex 1) the German version and language will prevail. The place of performance
|
und Sprache vorrangig. Erfüllungsort und Gerichtsstand ist Frankfurt am Main.
|
and of jurisdiction is Frankfurt am Main.
|
|||||
12.3
|
Sollte eine Bestimmung dieses Vertrages unwirksam oder nicht durchführbar sein, so bleiben dessen übrige Bestimmungen davon unberührt. Vertragliche Lücken sollen durch eine Regelung ersetzt werden, die dem Zweck dieses Vertrages am besten entspricht.
|
12.3
|
If any provision of this Agreement is invalid or not feasible, this will not affect the remaining provisions. Any gap in the provisions is to be filled with a legally valid provision which comes as close as possible to the spirit and purpose of this Agreement.
|
|||
12.4
|
Die Rechte und Pflichten aus diesem Vertrag dürfen nicht ohne vorherige schriftliche Zustimmung des Vertragspartners abgetreten, belastet oder übertragen werden.
|
12.4
|
Rights and obligations under this Agreement may not be assigned or pledged without the prior written consent of the corresponding contracting party.
|
|||
12.5
|
Erklärungen oder Mitteilungen in Zusammenhang mit diesem Vertrag sind rechtsverbindlich unterschrieben per Post oder Telefax an die folgenden Anschriften zu richten oder, soweit besonders vereinbart, per Datenfernübertragung zu übermitteln:
|
12.5
|
Representations or notices relating to this Agreement must be affixed with a legally binding signature and dispatched by post or facsimile to the following addresses or, if so agreed, by remote data transfer:
|
|||
Für die KfW:
KfW IPEX-Bank GmbH
[Ansprechpartner]
Palmengartenstraße 5-9
60325 Frankfurt am Main
Telefon:+49 (0) 69 74 31 – [•]
Telefax:+49 (0) 69 74 31 – 2944
Email: [•]
Für die Bank:
[•]
|
For KfW:
KfW IPEX-Bank GmbH
[contract person]
Palmengartenstraße 5-9
60325 Frankfurt am Main/Germany
phone:+49 (0) 69 74 31 – [•]
Fax:+49 (0) 69 74 31 – 2944
Email: [•]
For the Bank:
[•]
|
|||||
Ausgefertigt in zwei Urschriften, von denen jede Partei eine erhält.
|
Executed in two originals, one for each party.
|
Frankfurt am Main, [•]
|
[place], [•].
|
KfW IPEX-Bank GmbH
(duly authorised by KfW)
|
[Bank]
|
Anlage 2:Liste der subventionserheblichen Tatsachen für die Gewährung von Zinsausgleichsgarantien im Zusammenhang mit Schiffsfinanzierungen zum CIRR
|
Annex 2:List of facts relevant to subsidies pertaining to the provision of Interest Make-up Guarantees in connection with ship financing at the CIRR
|
|||||
Subventionserhebliche Tatsachen im Sinne von § 264 StGB in Verbindung mit § 2 Subventionsgesetz sind:
|
Facts relevant to subsidies within the meaning of Section 264 of the German Criminal Code (StGB) in conjunction with Section 2 of the German Subsidy Act (SubvG) are:
|
|||||
(a)
|
die mit dem Käufer vereinbarten Preise und Zahlungsbedingungen (Ziffern 2.1.3 und 2.1.4 des Refinanzierungsvertrages)
|
(a)
|
the prices and terms of payment agreed with the buyer (Sections 2.1.3 and 2.1.4. of the Agreement)
|
|||
(b)
|
die Höhe des gewährten Kredites sowie die vereinbarten Kreditbedingungen (Ziffer 2.2 des Refinanzierungsvertrages)
|
(b)
|
the amount of the Loan granted and the terms and conditions agreed for the Loan (Section 2.2 of the Agreement)
|
|||
(c)
|
alle Festlegungen bzw. Veränderungen von Terminen und Beträgen, durch die eine der unter (a) und (b) genannten Größen bestimmt bzw. variiert wird, also insbesondere:
|
(c)
|
all cases in which deadlines and amounts that either determine or change one of the variables listed in (a) or (b) are laid down or altered, in particular:
|
|||
-
|
sämtliche Angaben über Auszahlungsdaten und Auszahlungsbeträge sowie über Rückzahlungsdaten und Rückzahlungsbeträge
|
-
|
all data on disbursements and disbursement amounts as well as all data on repayments and repayment amounts
|
|||
-
|
der Berechnung eventuell zugrunde gelegter Wechselkurse
|
-
|
the calculation of underlying exchange rates (if any)
|
|||
-
|
vorgenommene Zinsfixierung bzw. Änderungen in der vereinbarten Bezugsbasis von Zinssätzen
|
-
|
the fixing of interest or changes in the agreed reference base for interest rates
|
|||
-
|
Erhalt außerplanmäßiger Rückzahlungen, Versicherungsleistungen, Verwertungserlöse und anderer Zahlungen, durch die sich die ausstehende Forderung vermindert
|
-
|
receipt of off-schedule repayments, insurance payments, enforcement proceeds and other payments as a result of which the outstanding claim is reduced
|
|||
-
|
Vereinbarungen über Änderungen des Kreditvertrages
|
-
|
agreements on amendments to the Loan Agreement
|
|||
(d)
|
das Verbot der Weitergabe der Verwaltungskostenpauschale an den Kreditnehmer gemäß Ziffer 1.4. der AGB
|
(d)
|
the prohibition of the transfer of the Fee for Administrative Expenses to the Borrower in accordance with Section 1.4. of the General Terms
|
Anlage 3: Allgemeine Bedingungen für den Zinsausgleich bei Schiffsfinanzierungen zum CIRR
|
Annex 3: General Terms and Conditions for Interest Make-up in Ship Financing Schemes at the CIRR
|
Clause
|
Page
|
|
1
|
Headings, Capitalised Terms, References, and Language
|
3
|
2
|
Abstract Acknowledgement of Debt
|
5
|
3
|
Grant of Pledges
|
6
|
4
|
Operation of Accounts
|
6
|
5
|
Secured Obligations
|
7
|
6
|
Representations and Warranties
|
7
|
7
|
Protection of Collateral
|
7
|
8
|
Enforcement of Collateral
|
8
|
9
|
Release of Collateral
|
9
|
10
|
Waivers of Pledgor
|
10
|
11
|
Assignment and Transfer
|
10
|
12
|
Substitution of a Pledgee
|
10
|
13
|
Further Assurance
|
11
|
14
|
Costs and Expenses
|
11
|
15
|
Severability, Duration and other Matters
|
11
|
16
|
Notification
|
12
|
17
|
Notices and Other Matters
|
12
|
18
|
Partial Invalidity
|
13
|
19
|
Changes and Amendments
|
14
|
20
|
Choice of Law and Jurisdiction
|
14
|
21
|
Entire Agreement
|
14
|
22
|
Process Agent
|
14
|
Schedule 1 Address details of the parties
|
15
|
|
Schedule 2 The Pledged Accounts
|
16
|
|
Schedule 3 Notification Letter
|
17
|
|
Schedule 4 Acknowledgement Letter
|
19
|
Schedule 5 Instruction to Account Bank
|
21
|
(1)
|
ROYAL CARIBBEAN CRUISES LTD., a Liberian corporation incorporated under the laws of Liberia and registered in the Register of Companies of Liberia under C-38863, whose registered office is at 80 Broad Street, Monrovia, Liberia, as pledgor (hereinafter referred to as the Pledgor);
|
(2)
|
KfW IPEX-Bank GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) organised under the laws of the Federal Republic of Germany (Germany), whose registered office is at Palmengartenstraße 5-9, 60325 Frankfurt am Main, Germany, in its capacity as facility agent (hereinafter referred to as the Facility Agent); and
|
(3)
|
[KFW IPEX-BANK GMBH, in its capacity as lender (hereinafter referred to as the Lender, and together with the Facility Agent the Pledgees). [Note: update to include all Lenders as at the time of execution and adapt the rest of the pledge agreement accordingly.]]
|
(A)
|
The Pledgor and KfW IPEX-Bank GmbH as Hermes Agent, Facility Agent and Lender have entered into a loan agreement dated November [] 2015 (as amended, varied, novated, supplemented, superseded or extended from time to time, hereinafter referred to as the Credit Agreement), pursuant to which the Lender has agreed to make available to the Borrower a loan facility in US dollars in connection with the financing of a passenger cruise vessel bearing Meyer Werft GmbH’s hull number S-713 (the Vessel) (the Transaction).
|
(B)
|
The Pledgor has opened or will open a Euro-denominated and US dollar-denominated bank account at the Account Bank for certain payments to be made to it in Euros or US dollars in relation to the Transaction.
|
(C)
|
The pledge provided for in this Account Pledge Agreement is a condition precedent to the utilisation of the US dollar loan facility by the Pledgor under the Credit Agreement.
|
1
|
Headings, Capitalised Terms, References, and Language
|
1.1
|
Headings are for ease of reference only and shall not affect the construction of this Account Pledge Agreement.
|
1.2
|
Unless otherwise defined herein or unless the context otherwise requires, capitalised terms defined in the Credit Agreement shall have the same meaning when used in this Account
|
1.3
|
In addition, in this Account Pledge Agreement
|
1.4
|
Words importing the plural shall include the singular and vice versa.
|
1.5
|
This Account Pledge Agreement is made in the English language. For the avoidance of doubt, the English language version of this Account Pledge Agreement shall prevail over any translation of this Account Pledge Agreement. However, where a German translation of a word or phrase appears in the text of this Account Pledge Agreement, the German translation of such word or phrase shall prevail.
|
1.6
|
In this Account Pledge Agreement, any reference to:
|
(a)
|
a defined document is a reference to that defined document as from time to time amended, varied, novated, restated, supplemented or extended;
|
(b)
|
promptly means without undue delay (unverzüglich) as contemplated by Section 121 of the German Civil Code (Bürgerliches Gesetzbuch - BGB); and
|
(c)
|
clauses and schedules are to be construed as references to clauses of and schedules to this Account Pledge Agreement.
|
2
|
Abstract Acknowledgement of Debt
|
3
|
Grant of Pledges
|
3.1
|
The Pledgor hereby pledges (verpfändet) to each of the Pledgees all of its rights and claims in the current and future amounts standing to the credit of its accounts stated in Schedule 2 (The Pledged Accounts) hereto (including all sub-accounts thereto), (hereinafter together referred to as the Pledged Accounts), in particular, but not limited to, the right to claim payment from the Account Bank, and in each case including all interest accruing thereon (together the Collateral).
|
3.2
|
Each of the Pledgees hereby accepts the Pledges created under clause 3.1 above.
|
3.3
|
For the avoidance of doubt, the Parties agree that nothing in this Account Pledge Agreement shall exclude a transfer of all or part of the Pledges created hereunder by operation of law upon the assignment or transfer (including by way of assignment and assumption (Vertragsübernahme)) of all or part of the Secured Obligations by any Pledgee in accordance with the Loan Documents.
|
4
|
Operation of Accounts
|
4.1
|
Unless the Facility Agent has notified the Account Bank that an Event of Default has occurred and is continuing, the Pledgor shall be entitled on and after the commencement of the Security Period, without the consent of the Pledgees, to request that the Facility Agent instructs the Account Bank (which the Facility Agent agrees to do) in the form set out in Schedule 5 or in such other form the Facility Agent and Account Bank may agree to disburse all of the moneys standing to the credit of the Pledged Accounts, either :
|
(a)
|
on the Delivery Date, in accordance with the provisions of section 2.5(d) (i) and (ii) of the Credit Agreement; or
|
(b)
|
to such account or accounts as the Facility Agent may specify as prepayment, in whole or in part, of the Loan in accordance with section 3.2, 3.7 or 9.2 of the Credit Agreement. For the purposes of this clause 4.1(b), if the Pledgor shall be obliged to prepay the Loan in whole or in part pursuant to sections 3.2, 3.7 or 9.2 of the Credit Agreement, the Facility Agent, on behalf of the Pledgees, will, if and to the extent that there are EUR funds standing to the credit of the EUR Pledged Account, consent to the disbursement of such EUR funds to third party counterparties for the purpose of foreign exchange into Dollars, so long as such exchanged Dollar funds are paid directly to such account as may be designated by the Facility Agent for application in or towards such prepayment.
|
4.2
|
Unless the Facility Agent has notified the Account Bank that an Event of Default has occurred and is continuing, all interest earned on the Pledged Accounts shall, at such times as the Pledgor may in its discretion request and, in any event, at the end of the Security Period, be paid to the Pledgor or to its order to such account as the Pledgor may direct and the Pledgor
|
5
|
Secured Obligations
|
6
|
Representations and Warranties
|
6.1
|
it is duly organised and validly existing under the laws of Liberia, it has obtained all licenses and authorisations to carry out its business as it is now being conducted, all necessary or recommendable corporate action authorising the conclusion and performance of this Account Pledge Agreement has been taken, all consents, approvals or permits which are required or recommendable in connection with the conclusion and performance of this Account Pledge Agreement have been obtained and this Account Pledge Agreement constitutes legal, valid and binding obligations of the Pledgor enforceable in accordance with its terms;
|
6.2
|
subject to the provisions in the general terms and conditions of the Account Bank, it is the sole legal and beneficial owner of the Collateral, has full title thereto and is entitled to pledge the Collateral to the Pledgees; and
|
6.3
|
subject to the provisions in the general terms and conditions of the Account Bank, this Account Pledge Agreement constitutes a first priority right in the Collateral and the Collateral is not subject to any prior or pari passu rights, including, but not limited to, rights of pledge, rights of usufruct and attachment.
|
7
|
Protection of Collateral
|
7.1
|
not to assign, encumber or otherwise dispose of any of the Collateral or any interest therein or offer to do so, except as herein provided and subject to the provisions in the general terms and conditions of the Account Bank;
|
7.2
|
to refrain from any acts or omissions which would result in the Collateral being encumbered or further encumbered, except as herein provided and subject to the provisions in the general terms and conditions of the Account Bank;
|
7.3
|
to record the Pledges immediately in its books and records and to refrain from any acts or omissions which could prevent third parties who may have a legitimate interest in obtaining knowledge of the Pledges from obtaining
|
7.4
|
not to otherwise defeat or impair the rights of the Pledgees under or in connection with this Account Pledge Agreement;
|
7.5
|
to open a new account (other than any Pledged Accounts in existence at the date of this Account Pledge Agreement) to hold the proceeds of the Loan disbursed or to be disbursed under the Credit Agreement only with prior written consent of the Facility Agent, and in accordance with the Credit Agreement. In such a case, the Pledgor shall grant a corresponding account pledge to the Pledgees over the newly established account;
|
7.6
|
to inform the Pledgees, by written notice to the Facility Agent, as soon as possible in the case the Pledgees’ rights in respect of the Collateral are prejudiced or jeopardised by attachment or are prejudiced or jeopardised by other material actions of third parties. Such information shall be accompanied, in the case of any attachment, by a copy of the order for attachment as well as all documents required for the filing of an objection against the attachment, and, in case of any other actions by third parties, by copies evidencing which actions have been or will be taken, respectively, as well as all documents required for the filing of an objection against such actions. The Pledgor shall further be obliged to inform as soon as possible the attaching creditors or other third parties asserting rights with respect to the Collateral in writing of the Pledgees’ rights in respect of the Collateral. All reasonable and adequately documented costs and expenses for countermeasures of the Pledgees shall be borne by the Pledgor. This shall also apply to the institution of legal action which any of the Pledgees reasonably considers necessary;
|
7.7
|
to inform the Pledgees, by written notice to the Facility Agent, promptly of any subsequent material changes in the value of the Pledged Accounts resulting from any set off or other reasons, after becoming aware of such changes other than in the ordinary course of business; and
|
7.8
|
to notify the Pledgees, by written notice to the Facility Agent, promptly of any event or circumstance which might be expected to have a material adverse effect on the validity or enforceability of this Account Pledge Agreement.
|
8
|
Enforcement of Collateral
|
8.1
|
Following the occurrence of an Event of Default and, in addition, if and when the requirements of Section 1204 et seq. of the German Civil Code (BGB) (Pfandreife) are met in respect of the Secured Obligations (or any part thereof) (an Enforcement Event), the Pledgees, acting through the Facility Agent, shall be entitled, after having given one week's notice to the Pledgor and if such Event of Default is then still continuing, to avail themselves of all rights and
|
8.2
|
In the case of the occurrence and (having regard to clause 8.1) continuation of an Enforcement Event, the Pledgees, acting through the Facility Agent, shall in particular be entitled to
|
(a)
|
collect the monies standing to the credit of the Pledged Accounts;
|
(b)
|
request that all documents relating to the Pledges be handed over to the Facility Agent and the Pledgor hereby agrees to comply promptly with any such request; and
|
(c)
|
take any other actions not mentioned in clauses (a) and (b) above which are necessary or appropriate for the purpose of realising the security granted by the Pledgor in accordance with this Account Pledge Agreement, to the extent that such actions are permissible under the applicable law and not restricted by any other Loan Document.
|
8.3
|
The Facility Agent shall apply such amounts in accordance with the provisions of the Credit Agreement and the other Loan Documents.
|
9
|
Release of Collateral
|
9.1
|
Upon (a) complete and irrevocable satisfaction of the Secured Obligations or (b) the end of the Security Period, the Pledgees, acting through the Facility Agent, will, upon request of the Pledgor, declare the release of the Pledges (Pfandfreigabe) to the Pledgor as a matter of record. For the avoidance of doubt, the Parties are aware that upon complete and irrevocable satisfaction of the Secured Obligations or, if earlier, the ending of the Security Period, the Pledges, due to their accessory nature (Akzessorietät), cease to exist by operation of law (the Discharge Date).
|
9.2
|
At any time when the total value of the aggregate security granted by the Pledgor and any of the other Security Grantors to secure the Secured Obligations which can be expected to be realised in the event of an enforcement of the Security (realisierbarer Wert) not only temporarily exceeds 110% of the Secured Obligations (hereinafter referred to as the Limit), the Facility Agent, acting on behalf of the Pledgees, shall on demand of the Pledgor release such part of the security (Sicherheitenfreigabe) as the Facility Agent may in its reasonable discretion determine so as to reduce the realisable value of the security to the Limit.
|
9.3
|
If the Pledgees are required to release any security prior to the Discharge Date, they shall be free to select the security to be released, taking into consideration the legitimate interest of the Pledgor.
|
10
|
Waivers of Pledgor
|
10.1
|
The Pledgor hereby expressly waives, to the fullest extent legally admissible, all defences of voidability (Anfechtbarkeit, Sections 1211, 770 of the German Civil Code (BGB)) and set-off (Aufrechenbarkeit, Sections 1211, 770 of the German Civil Code (BGB)) and any other defences that a pledgor may have under German law, including, but not limited to, all defences, to the fullest extent possible, in terms of Section 1211 of the German Civil Code (BGB), with the exception that the waiver shall not apply to set-offs or counterclaims that are (i) uncontested, or (ii) based on an unappealable court decision.
|
10.2
|
In case of enforcement of the Pledges under this Account Pledge Agreement, as long as any of the Secured Obligations remain outstanding, no rights of the Pledgees shall pass to the Pledgor or third parties by subrogation or otherwise, such rights being hereby waived by the Pledgor under this Account Pledge Agreement and relating to all forms of subrogation and all kind of security interest, including, but not limited to, pledges and guarantees (Bürgschaften). In particular, but not limited to, the Pledgor hereby waives, to the fullest extent legally admissible, any rights to subrogation in terms of Section 1225 of the German Civil Code (BGB).
|
11
|
Assignment and Transfer
|
11.1
|
Each of the Pledgees shall, at any time have the right to assign, to transfer, or to dispose of its rights in the Secured Obligations together with the rights and obligations under this Account Pledge Agreement (other than the Pledges which will be transferred by operation of law in the event the Secured Obligations are transferred) to any person who is, or may become, a Lender pursuant to and in accordance with the Credit Agreement. The Pledgor hereby already explicitly and irrevocably consents to such assignment, transfer or disposal.
|
11.2
|
The Facility Agent shall, at any time have the right to assign, to transfer, or to dispose of its rights and obligations under this Account Pledge Agreement to any person who becomes a Facility Agent pursuant to and in accordance with the Credit Agreement. The Pledgor hereby already explicitly and irrevocably consents to such assignment, transfer or disposal.
|
11.3
|
The Pledgor shall not be entitled to assign, to transfer, or to dispose of all or any part of its rights or obligations or both hereunder.
|
12
|
Substitution of a Pledgee
|
13
|
Further Assurance
|
13.1
|
Should any further actions and/or declarations be necessary in order to validly pledge the Collateral or any part thereof to the Pledgees, the Pledgor undertakes to take such actions and/or to provide such declarations upon the Pledgees’ demand.
|
13.2
|
The Pledgor herewith irrevocably authorises (bevollmächtigt unwiderruflich) the Facility Agent (including the right to grant sub-power of attorney (Untervollmacht)) to perform actions and declarations set out in clauses 12 and 13.1 above also in the Pledgor's name. The Facility Agent is herewith exempted from the restrictions of Section 181 of the German Civil Code (BGB).
|
14
|
Costs and Expenses
|
15
|
Severability, Duration and other Matters
|
15.1
|
The validity and effect of each of the Pledges created hereunder shall be independent from the validity and the effect of any of the other Pledges created hereunder.
|
15.2
|
This Account Pledge Agreement shall remain in full force and effect until the Secured Obligations have been completely satisfied. The Pledges shall not cease to exist if the Secured Obligations have only temporarily been satisfied.
|
15.3
|
As long as the Secured Obligations are not completely satisfied and not all facilities which may give rise to the Secured Obligations have been terminated, the Pledgor shall not assert any claims against any other person which might arise from the fulfilment of its obligations according to this Account Pledge Agreement, either contractual or statutory. The monies which are transferred to or debited by the Pledgor from such other person shall be received by the Pledgor on trust (treuhänderisch) and transferred by it on trust to the Facility Agent.
|
15.4
|
This Account Pledge Agreement shall create a continuing security and no change or amendment in the Transaction Documents shall affect the validity and the scope of this Account
|
15.5
|
Subject to anything expressed to the contrary in this Account Pledge Agreement, the Pledges are independent from and granted in addition to any other security or guarantee which may have been given to the Pledgees with respect to any of the Secured Obligations. None of such other security interests shall prejudice, or shall be prejudiced by, or shall be merged in any way with, this Account Pledge Agreement.
|
15.6
|
This Account Pledge Agreement shall inure to the benefit of the Pledgees, their respective successors and permitted assigns.
|
16
|
Notification
|
16.1
|
In order to comply with the requirement of Section 1280 of the German Civil Code (BGB) the Pledgor shall notify the Account Bank of the Pledge created hereunder by delivery to the Account Bank of a notification letter as set out in Schedule 3 to this Account Pledge Agreement on the date of this Account Pledge Agreement.
|
16.2
|
The Pledgor shall use all reasonable endeavours to procure that the Account Bank confirms receipt of the notification letter by signing the acknowledgement letter as set out in Schedule 4 of this Account Pledge Agreement.
|
17
|
Notices and Other Matters
|
17.1
|
Notices
|
(a)
|
Any notice or communication to be made under or in connection with this Account Pledge Agreement shall be made in writing and, unless otherwise stated, may be made by prepaid letter or fax.
|
(b)
|
Addresses for notices
|
(c)
|
Delivery of notices
|
(i)
|
if by way of fax, when received in complete and legible form; or
|
(ii)
|
if by way of letter, when received by its addressee,
|
17.2
|
No implied waiver, remedies cumulative
|
17.3
|
English translations
|
17.4
|
Counterparts
|
18
|
Partial Invalidity
|
19
|
Changes and Amendments
|
20
|
Choice of Law and Jurisdiction
|
20.1
|
This Account Pledge Agreement and any non-contractual obligations connected with it shall be governed by and construed in accordance with the laws of the Federal Republic of Germany.
|
20.2
|
The place of jurisdiction shall be Frankfurt am Main, Germany, provided, however, that each of the Pledgees shall also be entitled to take legal action against the Pledgor before any other court of competent jurisdiction.
|
21
|
Entire Agreement
|
22
|
Process Agent
|
22.1
|
For the purpose of any suit, action, proceeding or settlement of dispute in the German courts, the Pledgor hereby undertakes to appoint (zu bestellen) and to authorise (bevollmächtigen) [Note: Address details of Process Agent in Germany to be added] Germany, as process agent (Zustellungsbevollmächtigten) to accept service of process in respect of any such suit, action, proceeding or settlement of dispute in connection with this Account Pledge Agreement. The Pledgor shall furnish the Facility Agent with written confirmation from the process agent that the process agent has accepted such appointment.
|
22.2
|
If for any reason, such process agent no longer serves as agent to receive process in the Federal Republic of Germany, the Pledgor shall promptly notify the Facility Agent and within a period of 30 days appoint a substitute process agent acceptable to the Facility Agent.
|
Party
|
Name
|
Details
|
|
Pledgor
|
Royal Caribbean Cruises Ltd.
|
Address for notices:
1050 Caribbean Way
Florida 33132, Miami
United States of America
|
|
Attention:
|
General Counsel
|
||
B. Stein
|
|||
Facsimile:
|
+1 (305) 539-64 00
|
||
Email:
|
bstein@rccl.com
|
||
Facility Agent
|
KfW IPEX-Bank GmbH
|
Address for notices:
Palmengartenstraße 5-9
60325 Frankfurt am Main
Germany
|
|
Attention:
|
Maritime Industries
|
||
Mrs. Claudia Wenzel
|
|||
E-mail:
|
claudia.wenzel@kfw.de
|
||
Fax:
|
+49 (69) 7431 3768
|
||
With a copy to: Credit Operations
|
|||
Fax:
|
+49 (69) 7431 2944
|
Account name
|
Account Bank
|
Account Holder
|
Account Number
|
IBAN
|
[ ] (EUR Account)
|
Norddeutsche Landesbank Girozentrale
|
Borrower
|
[ ]
|
[ ]
|
[ ] (Dollar Account)
|
Norddeutsche Landesbank Girozentrale
|
Borrower
|
[ ]
|
[ ]
|
1
|
Royal Caribbean Cruises Ltd. (the Pledgor) hereby gives you notice in accordance with Section 1280 German Civil Code (BGB) that by an accounts pledge agreement dated [·] it has pledged in favour of KfW IPEX-Bank GmbH in its capacity as facility agent (the Facility Agent) and KfW IPEX-Bank GmbH in its capacity as lender (the Lender) (the Facility Agent and the Lender are hereinafter referred together to as the Pledgees) (the Account Pledge Agreement) all of its rights, interests and claims in the current and future amounts standing to credit of the following accounts held in the name of the Pledgor with you:
|
·
|
Account number [ ] (IBAN DE[ ]);
|
·
|
Account number [ ]
|
2
|
The Pledgor hereby requests that you deliver to the Pledgor and the Pledgees confirmation of receipt of this notice in the form attached to this letter (the Acknowledgement Letter) and further request that you provide to the Pledgees all information which they request from time to time concerning the Pledged Accounts.
|
3
|
The Pledgor hereby further requests you to agree:
|
(a)
|
not to make any set-off or deduction from the Pledged Accounts or invoke any rights of retention in relation to the Pledged Accounts during the existence of the Account Pledge Agreement, other than in relation to (i) charges payable in connection with the maintenance of the Pledged Accounts in the ordinary course of business relating thereto or (ii) other bank charges or fees payable in relation to reverse and correction entries and/or amounts arising from the return of direct debits or cheques credited to an account, in each case to the extent relating to such Pledged Accounts; and
|
(b)
|
that the pledge in your favour over the Pledged Accounts granted pursuant to your general business conditions shall rank for the time the Accounts Pledge Agreement is in force behind the pledge over the Pledged Accounts granted to the Pledgees by the Pledgor pursuant to the Accounts Pledge Agreement and that you agree to be treated in all respect as if the pledge granted pursuant to your general business conditions would have been created after the pledge under the Accounts Pledge Agreement has been perfected.
|
4
|
Please confirm that you have neither received any previous notice of pledge relating to the Pledged Accounts nor are aware of any third party rights in relation to the Pledged Accounts.
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5
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We hereby confirm that you will be only entitled to follow the instructions of the Facility Agent in relation to the Pledged Accounts.
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6
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This Notice shall be governed by and construed in accordance with the laws of Germany.
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7
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Place of jurisdiction shall be Frankfurt am Main, Germany.
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Royal Caribbean Cruises Ltd.
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KfW IPEX-Bank GmbH in its capacity as Facility Agent
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KfW IPEX-Bank GmbH in its capacity as Lender
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[Norddeutsche Landesbank Girozentrale]
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Account Holder
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[ ]
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Bank Name
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[ ]
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IBAN
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[ ]
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SWIFT
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[ ]
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Amount
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[ ]
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Reference
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[ ]
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Account Holder
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[ ]
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Bank Name
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[ ]
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IBAN
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[ ]
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SWIFT
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[ ]
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Amount
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[ ]
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Account Holder
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[ ]
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Bank Name
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[ ]
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IBAN
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[ ]
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SWIFT
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[ ]
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Amount
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[ ]
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ROYAL CARIBBEAN CRUISES LTD.
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acting by:
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Name:
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Title:
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KFW IPEX-BANK GMBH
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acting by:
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Name:
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Name:
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Title:
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Title:
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KFW IPEX-BANK GMBH
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acting by:
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Name:
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Name:
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Title:
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Title:
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