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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(Zip Code)
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Registrant’s telephone number, including area code: 305-539-6000
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o
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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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o
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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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June 28, 2016
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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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Private & Confidential
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Dated
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22 June 2016
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SAINTIAMI FINANCE LIMITED
as Existing Borrower
ROYAL CARIBBEAN CRUISES LTD.
as New Borrower
CITIBANK EUROPE PLC, UK BRANCH
as Facility Agent
CITICORP TRUSTEE COMPANY LIMITED
as Security Trustee
CITIBANK N.A., LONDON BRANCH
as Global Coordinator
HSBC FRANCE
as French Coordinating Bank
SUMITOMO MITSUI BANKING CORPORATION EUROPE LIMITED, PARIS
BRANCH
as ECA Agent
BANCO BILBAO VIZCAYA ARGENTARIA, PARIS BRANCH, BANCO
SANTANDER, S.A. PARIS BRANCH, CITIBANK N.A., LONDON BRANCH, HSBC
FRANCE, SOCIÉTÉ GÉNÉRALE and SUMITOMO MITSUI BANKING
CORPORATION EUROPE LIMITED, PARIS BRANCH
as Mandated Lead Arrangers
AND
THE BANKS AND FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1
as Original Lenders
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NOVATION AGREEMENT
relating to a secured credit facility
agreement for Hull No. J34 at STX France
S.A.
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NORTON ROSE FULBRIGHT
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Clause
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Page
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1
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Definitions
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2
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2
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Consent and agreement of the Finance Parties
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4
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3
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Assumption of liability and obligations
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4
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4
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Amendment and restatement of Principal Agreement
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6
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5
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Loan currency, Additional Advances and undrawn Commitments under the Principal Agreement
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6
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6
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Conditions
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9
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7
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Fixed rate
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10
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8
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Representations and warranties
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10
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9
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Covenants
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11
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10
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Commitment and cancellation by the New Borrower
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12
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11
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Satisfaction of Receivable, releases and Coface Insurance Policy
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14
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12
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Assignment and transfers
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14
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13
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Miscellaneous and notices
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15
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14
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Governing law and jurisdiction
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15
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Schedule 1 The Original Lenders
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17
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Schedule 2 Conditions precedent
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20
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Schedule 3 Form of Novated Credit Agreement
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22
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(1)
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SAINTIAMI FINANCE LIMITED as transferor (the Existing Borrower);
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(2)
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ROYAL CARIBBEAN CRUISES LTD. as transferee (the New Borrower);
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(3)
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CITIBANK EUROPE PLC, UK BRANCH as facility agent for the other Finance Parties (the Facility Agent);
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(4)
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CITICORP TRUSTEE COMPANY LIMITED as security trustee for the other Finance Parties (the Security Trustee);
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(5)
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CITIBANK N.A., LONDON BRANCH as global coordinator (the Global Coordinator);
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(6)
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HSBC FRANCE as French coordinating bank (the French Coordinating Bank);
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(7)
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SUMITOMO MITSUI BANKING CORPORATION EUROPE LIMITED, PARIS BRANCH as ECA agent (the ECA Agent);
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(8)
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BANCO BILBAO VIZCAYA ARGENTARIA, PARIS BRANCH, BANCO SANTANDER, S.A. PARIS BRANCH, CITIBANK N.A., LONDON BRANCH, HSBC FRANCE, SOCIÉTÉ GÉNÉRALE and SUMITOMO MITSUI BANKING CORPORATION EUROPE LIMITED, PARIS BRANCH as Mandated Lead Arrangers; and
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(9)
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THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 as Original Lenders.
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(A)
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By a facility agreement dated on or about the date of this Agreement (the Principal Agreement) and made between (1) the Existing Borrower as borrower, (2) the banks and financial institutions named therein as original lenders, (3) the Mandated Lead Arrangers as mandated lead arrangers, (4) the Facility Agent as facility agent, (5) the Security Trustee as security trustee (6) the Global Coordinator as global coordinator, (7) the French Coordinating Bank as French coordinating Bank and (8) the ECA Agent as ECA agent, the Lenders have agreed to make available a loan of up to €545,688,000 to the Existing Borrower in connection with the purchase by the Existing Borrower of the Receivable from the Seller pursuant to the Receivable Purchase Agreement.
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(B)
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It is intended that on the Actual Delivery Date, and subject to the delivery of the Vessel to, and acceptance of the Vessel by, the New Borrower under the Building Contract and by way of satisfying the obligation of the New Borrower to pay the Receivable to the Existing Borrower (as purchaser of the Receivable from the Seller pursuant to the Receivable Purchase Agreement), all of the rights and obligations of the Existing Borrower in respect of the Principal Agreement shall be transferred by novation by the Existing Borrower to the New Borrower.
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(C)
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The parties have also agreed that on the date of the novation contemplated in Recital (B) the Novated Loan Balance at such date shall be converted into Dollars, certain additional advances shall be made to the New Borrower and the Principal Agreement shall be amended and restated (in the form of the Novated Credit Agreement) pursuant to the terms of this Agreement.
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(D)
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This Agreement sets out the terms and conditions upon which (i) the parties hereto shall agree to such novation, amendment and restatement of the Principal Agreement and (ii) the Lenders shall agree to make additional advances to the New Borrower.
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1
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Definitions
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1.1
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Definitions
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(a)
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the amount of the Final Payment after any deductions permitted under the Buyer Consent Agreement;
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(b)
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€545,688,000; and
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(c)
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the amount referred to in clause 2.1(c) of the Principal Agreement.
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(a)
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the Facility Agent has notified the parties in writing that it has received all of the documents and other evidence referred to in clause 6; and
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(b)
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such time falls before the Back Stop Date (as defined in the Receivable Purchase Agreement and subject to clause 10.2).
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1.2
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Headings
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1.3
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Construction
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1.4
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References to Novated Credit Agreement
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1.5
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References to Security Trustee and Finance Parties
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2
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Consent and agreement of the Finance Parties
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3
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Assumption of liability and obligations
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3.1
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Substitution
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(a)
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the New Borrower shall be, and is hereby made, a party to the Principal Agreement in substitution for the Existing Borrower; and
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(b)
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the Principal Agreement shall be amended and restated as set out in clause 4.
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3.2
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Assumption of liability
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3.3
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Release
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3.4
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No liability
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3.5
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Novated Loan Balance
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(a)
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following each Drawdown Date (and at any other time upon reasonable request), it will provide the New Borrower with an update in relation to the amount of the outstanding Loan;
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(b)
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not less than ten Banking Days prior to the anticipated Actual Delivery Date, it will consult with the New Borrower regarding the anticipated amount of the Novated Loan Balance as at the anticipated Novation Effective Time to enable the New Borrower to confirm and verify this amount (having regard to paragraphs (a) and (b) of the definition of Novated Loan Balance) and satisfy itself that it is an amount which reflects the expected drawdown of the Loan during the period prior to the Actual Delivery Date and that the same does not include any Unsecured Advances. The New Borrower shall promptly confirm its acceptance of the amount or, if applicable, raise any questions as to the calculation of this amount with the Facility Agent so that the amount can be approved prior to the Novation Effective Time; and
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(c)
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as part of the process of agreeing the Novated Loan Balance it will participate in the preparation of the delivery funds flow agreement referred to in clause 13.6 of the Buyer Consent Agreement.
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3.6
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Prepayment in respect of overpaid Purchase Price
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(a)
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the relevant amount of such prepayment may, if requested by the New Borrower, be deducted from the amount of the Additional Advances to be made available to the New Borrower on the Novation Effective Date and, where the New Borrower has requested that the prepayment required under this clause 3.6 be deducted from the Additional Advances, an actual payment shall only be required by the New Borrower if the prepayment amount exceeds the aggregate amount of the Additional Advances to be advanced to the New Borrower; and
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(b)
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the New Borrower shall be entitled to exercise its rights under clause 13.2(b) of the Buyer Consent Agreement.
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3.7
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Notification of set-off
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4
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Amendment and restatement of Principal Agreement
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5
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Loan currency, Additional Advances and undrawn Commitments under the Principal Agreement
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5.1
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Currency conversion
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5.2
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Additional Advances
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(a)
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an amount of up to 80% of the incurred Non-Yard Costs (of up to €76,000,000) and the Other Basic Contract Price Increases paid or to be paid by the New Borrower under the Building Contract and in a maximum aggregate amount of €78,300,000; and
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(b)
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an amount equal to 100% of the Coface Premium as calculated in accordance with Section 11.13.1(b) of the Novated Credit Agreement as at the Novation Effective Time, which amount shall be divided into two parts:
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(i)
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the amount payable by the New Borrower to Coface in respect of such part of the Coface Premium which remains payable to Coface at the Novation Effective Date; and
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(ii)
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the balance, which shall, subject to the New Borrower’s set-off rights referred to in clause 13.3 of the Buyer Consent Agreement, be payable by the New Borrower to the Seller in reimbursement of the amounts which have been deducted from the Payment Amounts in respect of the Coface Premium pursuant to the Receivable Purchase Agreement,
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5.3
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Adjustment of Additional Advances
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(a)
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the difference obtained by subtracting the Spot Rate of Exchange on the Actual Delivery Date from the Weighted Average Rate of Exchange; and
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(b)
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the Novated Loan Balance.
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5.4
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Undrawn Commitments under the Principal Agreement
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(a)
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the Existing Borrower has not drawn the full amount of the Total Commitments under the Principal Agreement at the Novation Effective Date; or
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(b)
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the Total Commitments under the Principal Agreement have been cancelled or reduced before the Novation Effective Date and this is not as a result of a cancellation of the Building Contract by the Seller due to a Buyer Specified Event; or
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(c)
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it is not possible for the Facility to be made available to the Existing Borrower to the satisfaction of the Seller and the New Borrower,
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(i)
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the amounts payable to the Lenders in respect of arrangement fees in respect of the Facility (as set out in the relevant Fee Letter attached to any Fee Letter signed by the New Borrower) and the Coface Premium payable to Coface, shall continue to be payable in full and the New Borrower shall be required, where it does not currently have responsibility for the full payment of all those amounts, to assume responsibility for the payment of such amounts (it being acknowledged that the New Borrower shall not have any responsibility for payment of amounts of Coface Premium already paid to Coface pursuant to the Receivable Purchase Agreement where these amounts have not been (or will not be) refunded due to the cancellation of the Facility); and
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(ii)
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it shall be liable to pay commitment fees on the basis set out in Section 3.4 (Commitment Fees) of the Novated Credit Agreement (but without double counting in relation to any amounts due under clause 10.1).
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5.5
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Borrowing procedure for Additional Advances
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5.6
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Notification of New Borrower’s hedging arrangements
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(a)
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In connection with the calculation of the Weighted Average Rate of Exchange, the New Borrower agrees to provide the Facility Agent with the information referred to in this clause 5.6. The New Borrower and the Facility Agent agree to have an initial discussion in relation to the calculation by no later than the date falling 60 days before the anticipated Actual Delivery Date and thereafter, following the invoicing of the Non-Yard Costs to the
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(b)
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The New Borrower shall deliver to the Facility Agent (who shall promptly forward the same to the Lenders and Coface), on a quarterly basis following the First Payment Date (as defined in the Receivable Purchase Agreement), a schedule of the Weighted Average Rate, accompanied by copies of confirmations or screen shots evidencing the entry into, termination or modification of any trades or fixings effected during such quarter under any agreements entered into by the New Borrower from time to time in spot or forward currency markets for the purchase of euros with Dollars in order to pay the Contract Price or fix the NYC Applicable Rate.
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(c)
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Notwithstanding paragraph (b) above, on or between the tenth and second Banking Days prior to the date on which the New Borrower intends to deliver the Loan Request (as defined in the Novated Credit Agreement) to the Facility Agent, the New Borrower shall deliver to the Facility Agent (who shall promptly forward the same to the Lenders and Coface) the New Borrower's preliminary written calculation in reasonable detail of the Weighted Average Rate of Exchange (to the extent not previously provided) and the New Borrower shall also provide copies or other evidence of such currency hedges as the Facility Agent may reasonably require.
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5.7
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Alternative Spot Rate of Exchange
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6
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Conditions
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6.1
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Documents and evidence
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(a)
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by no later than the Signing Date, the Facility Agent, or its duly authorised representative, shall have received the documents and evidence specified in Part 1 of Schedule 2 in form and substance satisfactory to the Facility Agent (acting on the instructions of the Lenders and Coface);
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(b)
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by no later than the Initial Effective Date, the Facility Agent, or its duly authorised representative, shall have received the documents and evidence specified in Part 2 of Schedule 2 in form and substance satisfactory to the Facility Agent (acting on the instructions of the Lenders and Coface); and
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(c)
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by no later than the Novation Effective Time, the Facility Agent, or its duly authorised representative, shall have received each of the documents and evidence set out in section 5.1 of the Novated Credit Agreement (but subject to the proviso to Section 5.1.10) and confirmation in writing from the New Borrower to the Facility Agent that it will take delivery of the Vessel under the Building Contract and the actual date on which delivery shall occur, which confirmation shall be given immediately prior to the occurrence of the Novation Effective Time.
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6.2
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General conditions precedent
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(a)
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the representations and warranties of the New Borrower contained in clause 8 are true and correct in all material respects (except for such representations and warranties that are qualified by materiality or non-existence of a material adverse effect which shall be accurate in all respects) on and as of each such time as if each was made with respect to the facts and circumstances existing at such time; and
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(b)
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no Event of Default and no Prepayment Event (each as defined in the Novated Credit Agreement) shall have occurred and be continuing or would result from the novation of the Principal Agreement or the making of the Additional Advances pursuant to this Agreement.
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6.3
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Waiver of conditions precedent
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6.4
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Confirmation of conditions precedent
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7
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Fixed rate
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8
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Representations and warranties
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8.1
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Existing Borrower representations and warranties
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(a)
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in clause 7.1 of the Principal Agreement on (i) the date of this Agreement and (ii) the Initial Effective Date; and
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(b)
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in clauses 7.1(a), 7.1(b), 7.1(c), 7.1(d) and 7.1(j) of the Principal Agreement on the Novation Effective Date,
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8.2
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New Borrower representations and warranties
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8.3
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Novation Effective Date representations by existing parties
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(a)
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it has not transferred (whether by way of security or otherwise) any of its rights or obligations under the Principal Agreement (other than (i) any transfers or assignments by a Lender in accordance with the provisions of clause 14 (Assignment, transfer and Facility Office) of the Principal Agreement or (ii) any replacement of the Facility Agent, Security Trustee, the French Coordinating Bank or the ECA Agent in accordance with the applicable provisions of the Agency and Trust Deed and the Security Trust Deed, which in each case, have previously been disclosed to the New Borrower where consent or approval of the New Borrower is not otherwise required in relation to any such assignments or transfers); and
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(b)
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it has duly performed all of its obligations under the Principal Agreement.
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9
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Covenants
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9.1
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New Borrower covenants
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(a)
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Section 7.1.1a) and b) (Annual and quarterly financial information);
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(b)
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Section 7.1.2 (Approvals and other consents);
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(c)
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Section 7.1.3 (Compliance with laws, etc.); and
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(d)
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the first sentence of Section 7.1.7 (Coface insurance policy/French government/CIRR representative requirement).
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9.2
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Notification of increased costs, etc.
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(a)
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it intends to claim for any increased cost under Sections 4.3 (Increased LIBO Rate Loan Costs, etc.) or 4.5 (Increased capital costs) or for any Covered Taxes (as defined in the Novated Credit Agreement) under Section 4.6 (Taxes) or reserve costs under Section 4.7 (Reserve costs) of the Novated Credit Agreement for the period falling after the Novation Effective Date; or
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(b)
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any of the circumstances referred to in Sections 4.1 (LIBO Rate lending unlawful) or 4.2 (Deposits unavailable) apply to it,
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9.3
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Notification of anticipated buffer claims
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9.4
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Interest stabilisation
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10
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Commitment and cancellation by the New Borrower
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10.1
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Commitment Fees
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10.2
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Cancellation
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10.3
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Prepayment of Loan under the Principal Agreement
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(a)
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the provisions of clause 3 shall not apply and accordingly the Novation Effective Time shall not be capable of occurring; and
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(b)
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the Existing Borrower and the Finance Parties hereby acknowledge that the Loan will be prepaid in full on the Actual Delivery Date in accordance with clause 4.3(e) of the Principal Agreement but that the Principal Agreement shall otherwise continue in force in accordance with its terms and the Facility will continue to be available to the Existing Borrower pursuant to the terms of the Principal Agreement.
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10.4
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Coface Premium
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10.5
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Fixed rate breakage costs
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(a)
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voluntarily cancels all or any of the Commitment under clause 10.2;
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(b)
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voluntarily cancels all or any of the Commitment after it has exercised its rights under clause 4.3 of the Buyer Consent Agreement; or
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(c)
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subject to the proviso below, does not borrow the Maximum Loan Amount as a result of the Contract Price being reduced in accordance with Article III of the Building Contract (resulting in a corresponding cancellation of part of the Commitment),
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(i)
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if:
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(A)
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the Commitment is cancelled in full, 80% of €583,000,000; or
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(B)
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the Commitment is partially cancelled, the amount which is 80% of €583,000,000 minus the un-cancelled Commitment; and
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(ii)
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24 assumed semi-annual repayment instalments starting from the Expected Delivery Date at the Signing Date.
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11
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Satisfaction of Receivable, releases and Coface Insurance Policy
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11.1
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Receivable
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11.2
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Release of Security Documents on Novation Effective Date
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(a)
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the Mortgage will be released (but without prejudice to the Finance Parties’ obligation to release the Mortgage in accordance with clause 11.1 of the Buyer Consent Agreement);
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(b)
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the Borrower Assignment (and any security assigned thereunder) and the Share Security will be released;
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(c)
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the Security Trustee will be released from its obligations under the Security Trust Deed and the Agency and Trust Deed;
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(d)
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the Facility Agent, the French Coordinating Bank and the ECA Agent will be released from their respective obligations under the Agency and Trust Deed (on the basis that the provisions of Article X (The Facility Agent and the Coface Agent) of the Novated Credit Agreement will then apply); and
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(e)
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the Facility Guarantors shall be released from their obligations under the Facility Guarantees,
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11.3
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Coface Insurance Policy
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12
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Assignment and transfers
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13
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Miscellaneous and notices
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13.1
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Notices
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1050 Caribbean Way
Miami
Florida 33132
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Fax no:
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+1 (305) 539-0562
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Attn:
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Vice President, Treasurer
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Copy to:
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General Counsel
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13.2
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Counterparts
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13.3
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Contracts (Rights of Third Parties) Act 1999
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(a)
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With the exception of Coface, no term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.
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(b)
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Notwithstanding any term of this Agreement, the consent of any person who is not a party to this Agreement is not required to amend or vary this Agreement at any time.
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13.4
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Rights of New Borrower under the Principal Agreement
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13.5
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New Borrower payments
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13.6
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Confidentiality
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14
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Governing law and jurisdiction
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14.1
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Law
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14.2
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Submission to jurisdiction
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Existing Borrower
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Walkers London office at present of 6 Gracechurch Street, London EC3V 0AT
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New Borrower
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RCL Cruises Ltd., Building 3, The Heights – Brooklands, Weybridge, Surrey, KT13 ONY, Attention: General Counsel
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14.3
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Waiver of immunity
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Original Lender
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Facility Office and contact details
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Commitment
%
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Banco Bilbao Vizcaya
Argentaria, Paris
Branch
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29 avenue de l'Opéra
75001 Paris
France
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2
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Attention:
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David Peyroux
Laura Luca de Tena
Maria Merodio
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Fax No:
Tel No:
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+33 1 44 86 84 45
+33 1 44 86 83 98 /
+33 1 44 86 83 21 /
+33 1 44 86 84 45
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Email:
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david.peyroux@bbva.com /
laura.luca@bbva.com /
asuncion.merodio@bbva.com
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Banco Santander,
S.A. Paris branch
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Facility Office:
40 rue de Courcelles
75008 Paris
France
Operational address:
Ciudad Financiera
Avenida de Cantabria s/n
Edificio Encinar 2a planta
28600 Boadilla del Monte
Spain
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12
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Attention:
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Elise Regnault
Matias Herkommer
Vanessa Berrio
Jose Luis Diaz Cassou
Caroline Pereira Pantaleao
|
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Fax No:
Tel No:
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+34 91 257 1682
+34 912893722 /
+34 912891127
+34 912891028
+34 91 289 1370
+33 1 53 53 70 35
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E-mail:
elise.regnault@gruposantander.com
mherkommer@gruposantander.com
vaberrio@gruposantander.com
joldiaz@gruposantander.com
cpantaleao@gruposantander.com
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Original Lender
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Facility Office and contact details
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Commitment
%
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Citibank N.A.,
London Branch
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Citigroup Centre
Canada Square
London E14 5LB
United Kingdom
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21
|
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Attention:
|
Konstantinos Frangos
Francois Turpault
Kara Catt
Romina Coates
|
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Fax No:
Tel No:
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+44 20 7986 4881
+44 20 7986 3035 /
+44 20 7508 0344
+44 20 7986 4824 /
+44 20 7986 5017
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E-mail:
konstantinos.frangos@citi.com
francois.turpault@citi.com
kara.catt@citi.com
romina.coates@citi.com
|
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HSBC France
|
HSBC France – Global Banking Agency
Operations (GBAO) Transaction Manager
Unit 103 avenue des Champs Elysées
75008 Paris
France
|
21
|
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Attention:
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Fatma Bao
Elie Eh El Hayek
|
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Fax No:
Tel No:
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+ 33 1 40 70 28 80
+ 33 1 40 70 79 15 /
+ 33 1 57 57 01 58
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E-mail:
fatma.bao@hsbc.fr
elie.eh.el.hayek@hsbc.fr
|
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Copy to:
HSBC France
103 avenue des Champs Elysées
75008 Paris
|
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Attention:
|
Julie Bellais
Gilles Pinot de Villechenon
|
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Fax No:
Tel No:
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+ 33 1 40 70 78 93
+ 33 1 40 70 28 59 /
+ 33 1 40 70 35 07
|
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E-mail:
julie.bellais@hsbc.fr
gilles.pinot.de.villechenon@hsbc.fr
|
Original Lender
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Facility Office and contact details
|
Commitment
%
|
||
Société Générale
|
Facility Office:
29 Boulevard Haussmann
75009 Paris
France
Address for Operational / Servicing matters:
Attention: Bouchra BOUMEZOUED / Aramata COULIBALY
Société Générale
189, rue d’Aubervilliers
75886 PARIS CEDEX 18
France
|
24
|
||
Tel No:
|
+33 1 57 29 13 12
+33 1 57 29 03 30
|
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Fax No:
|
+33 1 46 92 45 98
|
|||
Email: par-oper-caf-mt6@sgcib.com
|
||||
For Credit matters:
OPER/FIN/SMO/EXT
|
||||
Attention:
|
Sebastien LEOCADIE /
Olivier GUEGUEN
|
|||
Tel No:
|
+33 1 58 98 29 85
+33 1 42 13 07 52
|
|||
Fax No:
|
+33 1 46 92 45 97
|
|||
Email:
sebastien.leocadie@sgcib.com
olivier.gueguen@sgcib.com
par-oper-fin-smo-ext@sgcib.com
|
||||
Sumitomo Mitsui
Banking Corporation
Europe Limited, Paris
Branch
|
1/3/5 rue Paul Cézanne, 75008 Paris, France
|
20
|
||
Attention:
|
Cedric Le Duigou
Guillaume Branco
Cam Truong
Claire Lucien
|
|||
Fax No:
|
+33 1 44 90 48 01
|
|||
Tel No:
Cedric Le Duigou:
Guillaume Branco:
Cam Truong:
Claire Lucien:
|
+33 1 44 90 48 83
+33 1 44 90 48 71
+33 1 44 90 48 51
+33 1 44 90 48 49
|
|||
E-mail :
cedric_leduigou@fr.smbcgroup.com
guillaume_branco@fr.smbcgroup.com
cam_truong@fr.smbcgroup.com
claire_lucien@fr.smbcgroup.com
|
||||
100
|
1
|
Evidence that the conditions precedent set out in clause 9.1(a) of, and Schedule 3 Part 1 to, the Principal Agreement have been satisfied in full or waived in accordance with clause 9.4 of the Principal Agreement.
|
2
|
Documents equivalent to those referred to in Section 5.1.1 (Resolutions, etc.) of the Novated Credit Agreement in relation to the New Borrower and its execution of this Agreement, the Buyer Consent Agreement and any other Transaction Documents to which it is a party.
|
1
|
Evidence that the conditions precedent set out in clause 9.1(b) of, and Schedule 3 Part 2 to, the Principal Agreement have been satisfied in full or waived in accordance with clause 9.4 of the Principal Agreement.
|
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
|
|
SECTION 1.1. Defined Terms
|
2
|
SECTION 1.2. Use of Defined Terms
|
13
|
SECTION 1.3. Cross-References
|
13
|
SECTION 1.4. Accounting and Financial Determinations
|
13
|
ARTICLE II COMMITMENTS AND BORROWING PROCEDURES
|
|
SECTION 2.1. Commitment
|
14
|
SECTION 2.2. Commitment of the Lenders; Termination and Reduction of Commitments
|
14
|
SECTION 2.3. Borrowing Procedure
|
14
|
SECTION 2.4. Funding
|
16
|
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
|
|
SECTION 3.1. Repayments
|
16
|
SECTION 3.2. Prepayment
|
16
|
SECTION 3.3. Interest Provisions
|
18
|
SECTION 3.3.1. Rates
|
18
|
SECTION 3.3.2. [Intentionally omitted]
|
18
|
SECTION 3.3.3. Interest stabilisation
|
18
|
SECTION 3.3.4. Post-Maturity Rates
|
18
|
SECTION 3.3.5. Payment Dates.
|
18
|
SECTION 3.3.6. Interest Rate Determination; Replacement Reference Banks
|
18
|
SECTION 3.4. Commitment Fees
|
19
|
SECTION 3.4.1. Payment
|
19
|
SECTION 3.5. Other Fees
|
19
|
ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS
|
|
SECTION 4.1. LIBO Rate Lending Unlawful
|
20
|
SECTION 4.2. Deposits Unavailable
|
20
|
SECTION 4.3. Increased LIBO Rate Loan Costs, etc.
|
21
|
SECTION 4.4. Funding Losses
|
22
|
SECTION 4.4.1. Indemnity
|
22
|
SECTION 4.4.2. Exclusion
|
24
|
SECTION 4.5. Increased Capital Costs
|
24
|
SECTION 4.6. Taxes
|
25
|
SECTION 4.7. Reserve Costs
|
27
|
SECTION 4.8. Payments, Computations, etc.
|
27
|
SECTION 4.9. Replacement Lenders, etc.
|
28
|
SECTION 4.10. Sharing of Payments
|
29
|
SECTION 4.10.1. Payments to Lenders
|
29
|
SECTION 4.10.2. Redistribution of payments
|
29
|
SECTION 4.10.3. Recovering Lender's rights
|
29
|
SECTION 4.10.4. Reversal of redistribution
|
29
|
SECTION 4.10.5. Exceptions
|
30
|
SECTION 4.11. Set-off
|
30
|
SECTION 4.12. Use of Proceeds
|
30
|
SECTION 4.13. FATCA Information
|
31
|
SECTION 4.14. Resignation of the Facility Agent
|
32
|
ARTICLE V CONDITIONS TO BORROWING
|
|
SECTION 5.1. Advance of the Loan
|
32
|
SECTION 5.1.1. Resolutions, etc.
|
32
|
SECTION 5.1.2. Opinions of Counsel
|
33
|
SECTION 5.1.3. Coface Insurance Policy
|
33
|
SECTION 5.1.4. Closing Fees, Expenses, etc.
|
33
|
SECTION 5.1.5. Compliance with Warranties, No Default, etc.
|
33
|
SECTION 5.1.6. Loan Request
|
34
|
SECTION 5.1.7. Foreign Exchange Counterparty Confirmations
|
34
|
SECTION 5.1.8. Protocol of delivery
|
34
|
SECTION 5.1.9. Title to Purchased Vessel
|
34
|
SECTION 5.1.10. Interest Stabilisation
|
34
|
ARTICLE VI REPRESENTATIONS AND WARRANTIES
|
|
SECTION 6.1. Organization, etc.
|
36
|
SECTION 6.2. Due Authorization, Non-Contravention, etc.
|
36
|
SECTION 6.3. Government Approval, Regulation, etc.
|
36
|
SECTION 6.4. Compliance with Environmental Laws
|
36
|
SECTION 6.5. Validity, etc.
|
36
|
SECTION 6.6. No Default, Event of Default or Prepayment Event
|
37
|
SECTION 6.7. Litigation
|
37
|
SECTION 6.8. The Purchased Vessel
|
37
|
SECTION 6.9. Obligations rank pari passu; Liens
|
37
|
SECTION 6.10. Withholding, etc.
|
37
|
SECTION 6.11. No Filing, etc. Required
|
37
|
SECTION 6.12. No Immunity
|
38
|
SECTION 6.13. Investment Company Act
|
38
|
SECTION 6.14. Regulation U
|
38
|
SECTION 6.15. Accuracy of Information
|
38
|
SECTION 6.16. Compliance with Laws
|
38
|
ARTICLE VII COVENANTS
|
|
SECTION 7.1. Affirmative Covenants
|
39
|
SECTION 7.1.1. Financial Information, Reports, Notices, etc.
|
39
|
SECTION 7.1.2. Approvals and Other Consents
|
40
|
SECTION 7.1.3. Compliance with Laws, etc.
|
40
|
SECTION 7.1.4. The Purchased Vessel
|
41
|
SECTION 7.1.5. Insurance
|
41
|
SECTION 7.1.6. Books and Records
|
42
|
SECTION 7.1.7. Coface Insurance Policy/French Authority Requirements
|
42
|
SECTION 7.2. Negative Covenants
|
42
|
SECTION 7.2.1. Business Activities
|
42
|
SECTION 7.2.2. Indebtedness
|
42
|
SECTION 7.2.3. Liens
|
43
|
SECTION 7.2.4. Financial Condition
|
45
|
SECTION 7.2.5. Investments
|
45
|
SECTION 7.2.6. Consolidation, Merger, etc.
|
45
|
SECTION 7.2.7. Asset Dispositions, etc.
|
46
|
SECTION 7.3. Lender incorporated in the Federal Republic of Germany
|
46
|
ARTICLE VIII EVENTS OF DEFAULT
|
|
SECTION 8.1. Listing of Events of Default
|
47
|
SECTION 8.1.1. Non-Payment of Obligations
|
47
|
SECTION 8.1.2. Breach of Warranty
|
47
|
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations
|
47
|
SECTION 8.1.4. Default on Other Indebtedness
|
47
|
SECTION 8.1.5. Bankruptcy, Insolvency, etc.
|
48
|
SECTION 8.2. Action if Bankruptcy
|
48
|
SECTION 8.3. Action if Other Event of Default
|
49
|
ARTICLE IX PREPAYMENT EVENTS
|
|
SECTION 9.1. Listing of Prepayment Events
|
49
|
SECTION 9.1.1. Change of Control
|
49
|
SECTION 9.1.2. Unenforceability
|
49
|
SECTION 9.1.3. Approvals
|
49
|
SECTION 9.1.4. Non-Performance of Certain Covenants and Obligations
|
49
|
SECTION 9.1.5. Judgments
|
49
|
SECTION 9.1.6. Condemnation, etc.
|
50
|
SECTION 9.1.7. Arrest
|
50
|
SECTION 9.1.8. Sale/Disposal of the Purchased Vessel
|
50
|
SECTION 9.1.9. Coface Insurance Policy
|
50
|
SECTION 9.1.10. Illegality
|
50
|
SECTION 9.2. Mandatory Prepayment
|
50
|
SECTION 9.3. Mitigation
|
50
|
ARTICLE X THE FACILITY AGENT AND THE ECA AGENT
|
|
SECTION 10.1. Actions
|
51
|
SECTION 10.2. Indemnity
|
51
|
SECTION 10.3. Funding Reliance, etc.
|
52
|
SECTION 10.4. Exculpation
|
52
|
SECTION 10.5. Successor
|
53
|
SECTION 10.6. Loans by the Facility Agent
|
53
|
SECTION 10.7. Credit Decisions
|
53
|
SECTION 10.8. Copies, etc.
|
54
|
SECTION 10.9. The Agents’ Rights
|
54
|
SECTION 10.10. The Facility Agent’s Duties
|
54
|
SECTION 10.11. Employment of Agents
|
55
|
SECTION 10.12. Distribution of Payments
|
55
|
SECTION 10.13. Reimbursement
|
55
|
SECTION 10.14. Instructions
|
55
|
SECTION 10.15. Payments
|
56
|
SECTION 10.16. “Know your customer” Checks
|
56
|
SECTION 10.17. No Fiduciary Relationship
|
56
|
SECTION 10.18. Illegality
|
56
|
ARTICLE XI MISCELLANEOUS PROVISIONS
|
|
SECTION 11.1. Waivers, Amendments, etc.
|
56
|
SECTION 11.2. Notices
|
57
|
SECTION 11.3. Payment of Costs and Expenses
|
59
|
SECTION 11.4. Indemnification
|
59
|
SECTION 11.5. Survival
|
60
|
SECTION 11.6. Severability
|
61
|
SECTION 11.7. Headings
|
61
|
SECTION 11.8. Execution in Counterparts, Effectiveness, etc.
|
61
|
SECTION 11.9. Third Party Rights
|
61
|
SECTION 11.10. Successors and Assigns
|
61
|
SECTION 11.11. Sale and Transfer of the Loan; Participations in the Loan
|
61
|
SECTION 11.11.1. Assignments
|
61
|
SECTION 11.11.2. Participations
|
64
|
SECTION 11.11.3. Register
|
65
|
SECTION 11.11.4. Rights of Coface to payments
|
65
|
SECTION 11.12. Other Transactions
|
65
|
SECTION 11.13. Coface Insurance Policy
|
65
|
SECTION 11.13.1. Terms of Coface Insurance Policy
|
65
|
SECTION 11.13.2. Obligations of the Borrower.
|
66
|
SECTION 11.13.3. Obligations of the ECA Agent and the Lenders
|
66
|
SECTION 11.14. Law and Jurisdiction
|
67
|
SECTION 11.14.1. Governing Law
|
67
|
SECTION 11.14.2. Jurisdiction
|
67
|
SECTION 11.14.3. Alternative Jurisdiction
|
67
|
SECTION 11.14.4. Service of Process
|
67
|
SECTION 11.15. Confidentiality
|
67
|
SECTION 11.16. French Authority Requirements
|
68
|
SECTION 11.17. Waiver of immunity
|
69
|
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 the Facility Agent and the Lenders
|
Exhibit B-3
|
-
|
Form of Opinion of French Counsel to the Facility Agent and the Lenders
|
Exhibit B-4
|
-
|
Form of Opinion of US Tax Counsel to the Lenders
|
Exhibit C
|
-
|
Form of Lender Assignment Agreement
|
Exhibit D
|
-
|
Form of Certificate of French Content
|
(A)
|
The Borrower and STX France S.A. (the “Builder”) have entered on 16 February 2015 into a Contract for the Construction and Sale of Hull No. J34 (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 J34 (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 the EUR sum of:
|
|
(i)
|
eighty per cent (80%) of the Contract Price (as defined below) of the Purchased Vessel, and including Non-Yard Costs of up to EUR 76,000,000 and the Other Basic Contract Price Increases (as defined below) for the Purchased Vessel, of up to EUR 78,300,000, but which amount shall not exceed in aggregate EUR661,300,000;
|
|
(ii)
|
eighty per cent (80%) of the change orders of up to EUR 99,110,000 (representing up to 17% of the Basic Contract Price) effected in accordance with the Construction Contract; and
|
|
(iii)
|
100% of the Coface Premium (as defined below),
|
|
being an amount no greater than EUR622,623,708 and being made available in the US Dollar Equivalent of that Maximum Loan Amount (as such Dollar amount may be adjusted pursuant to clause 5.3 of the Novation Agreement);
|
(C)
|
Of the amounts referred to in recital (B)(i) and (ii) above, the Lenders have made certain amounts available to the Original Borrower during the period prior to the Actual Delivery Date pursuant to this Agreement (the liability for which amount has been assumed by the Borrower following the novation of this Agreement pursuant to the Novation Agreement) and, in relation to the amount referred to in recital (B)(i), the balance has been or shall be made available to
|
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 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 offered quotation appears on Thomson Reuters LIBOR01 Page (or any successor page) at the relevant time the LIBO Rate shall be the Historic Screen Rate or, if it is not possible to calculate an Historic Screen Rate, it 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;
|
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 that rate is less than zero, the LIBO Rate shall be deemed to be zero.
|
a)
|
Each Lender will make its portion of the Loan available to the Borrower in accordance with Section 2.3 on the Actual Delivery Date. 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 clause 10.2 of the Novation Agreement or reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.11.1. Notwithstanding the foregoing, each Lender’s Commitment shall terminate on the earlier of (i) the Commitment Termination Date if the Purchased Vessel is not delivered prior to such date and (ii) the Actual Delivery Date.
|
b)
|
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)
|
Part of the Loan in an amount equal to the Novated Loan Balance shall be assumed by the Borrower and be deemed to be advanced to, and borrowed by the Borrower, pursuant to the provisions of clause 3 of the Novation Agreement and thereafter converted into Dollars pursuant to clause 5.1 of the Novation Agreement.
|
b)
|
In relation to the amount of the Loan comprised by the Additional Advances, the Borrower shall deliver a Loan Request and the documents required to be delivered
|
c)
|
The Facility Agent shall promptly notify each Lender of the Loan Request in respect of the Additional Advances by forwarding a copy thereof to each Lender, together with its attachments. On the terms and subject to the conditions of this Agreement, the portion of the Loan in respect of the Additional Advances shall be made on the Actual Delivery Date. On or before 11:00 a.m., London time, on the Actual Delivery Date, the Lenders shall, without any set-off or counterclaim, deposit with the Facility Agent same day funds in an amount equal to such Lender’s Percentage of the requested portion of the Additional Advances in Dollars. Such deposits will be made to such 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 Actual Delivery Date by wire transfer of same day funds to the accounts the Borrower shall have specified in its Loan Request.
|
d)
|
If the Borrower elects to finance that part of the Coface Premium payable by the Borrower with an Additional Advance under clause 5.2(b)(i) of the Novation Agreement, the Borrower shall indicate such election in the Loan Request. The amount of the advance in Dollars (the “US Dollar Coface Advance Amount”) that will fund the Coface Premium shall be equal to the Dollar amount that corresponds to the EUR amount of the Coface Premium to be financed with such advance, which amount shall be determined by the Facility Agent based on the Spot Rate of Exchange. The Facility Agent shall notify the Borrower and the Lenders of the US Dollar Coface Advance Amount on the date such Loan Request is delivered, and the Lenders shall deposit such US Dollar Coface Advance Amount with the Facility Agent in accordance with Section 2.3.c). The Facility Agent shall furnish a certificate to the Borrower on the date such Loan Request is delivered setting forth such Spot Rate of Exchange, its derivation and the calculation of the US Dollar Coface Advance Amount. If the Borrower elects to so finance the Coface Premium, the Borrower will be deemed to have directed the Facility Agent to pay over directly to Coface on behalf of the Borrower that portion of the EUR amount of the Coface Premium to be financed with the proceeds of the advance on the Actual Delivery Date and to retain for its own account deposits made by the Lenders in Dollars in an amount equal to the portion of the US Dollar Coface Advance Amount attributable to the Coface Premium paid by the Facility Agent to Coface on behalf of the Borrower.
|
e)
|
If the Borrower elects to finance that part of the Coface Premium payable by the Borrower with an Additional Advance under clause 5.2(b)(ii) of the Novation Agreement, the Borrower shall indicate such election in the Loan Request (and whether it wishes to receive such amount in EUR or in Dollars). The amount of the advance in Dollars (the “US Dollar Coface Balance Amount”) that will fund the Coface Premium shall be equal to the Dollar amount that corresponds to the EUR amount of the Coface Premium to be financed with such advance, which amount shall be determined by the Facility Agent based on the Spot Rate of Exchange. The Facility Agent shall notify the Borrower and the Lenders of the US Dollar Coface Balance Amount on the date such Loan Request is delivered, and the Lenders shall deposit
|
a)
|
The Borrower shall repay the Loan in 24 equal semi-annual installments, with the first installment to fall due on the date falling six (6) months after the Actual Delivery Date and the final installment to fall due on the date of Final Maturity.
|
b)
|
No such amounts 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 at least five (5) Business Days’ prior written notice to the Facility Agent; and
|
(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
|
ii)
|
shall, immediately upon any acceleration of the repayment of the installments 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 it becomes unlawful in any jurisdiction for any Lender to perform any of its obligations under the Loan Documents or to maintain or fund its portion of the Loan, the affected Lender may give written notice (the "Illegality Notice") to the Borrower and the Facility Agent of such event, including reasonable details of the relevant circumstances.
|
c)
|
If an affected Lender delivers an Illegality Notice, the Borrower, the Facility Agent and the affected Lender shall discuss in good faith (but without obligation) what steps may be open to the relevant Lender to mitigate or remove such circumstances but, if they are unable to agree such steps within 20 Business Days or if the Borrower so elects, the Borrower shall have the right, but not the obligation, exercisable at any time within 50 days after receipt of such Illegality Notice or, if earlier, the date upon which the unlawful event referred to in (b) above will apply (but not being a date falling earlier than the end of the 20 Business Day period referred to above) (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) acceptable to the Facility Agent (such consent not to be unreasonably withheld or delayed) and (II) where relevant, eligible to benefit from an Interest Stabilisation Agreement, pursuant to assignment(s) notified to and consented in writing by Coface and, where relevant Natixis DAI, 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 obliged to make any such assignment as a result of an election by the Borrower pursuant to this Section 3.2(c) 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).
|
a)
|
each Interest Payment Date;
|
b)
|
each Repayment Date;
|
c)
|
the date of any prepayment, in whole or in part, of principal outstanding on the Loan (but only on the principal so prepaid); and
|
d)
|
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.
|
|
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 Lenders that in the aggregate hold more than 50% of the aggregate outstanding principal amount of the Loan then held by Lenders 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 Lender may exercise its rights under this Section 4.2.c) for amounts up to the difference between such Lender’s cost of obtaining matching deposits on the date such 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 taxation on overall net income and, to the extent such taxes are described in Section 4.6, withholding taxes); 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,
|
i)
|
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 or (if the Floating Rate applies) any repayment or prepayment or
|
ii)
|
the relevant portion of 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 clause 6.1(c) of the Novation Agreement and Article V not being satisfied,
|
|
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 equal to the amount by which:
|
|
(i)
|
interest calculated at the Floating Rate (excluding the Floating Rate Margin) 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 amount notified to it following the calculation referred to in the next paragraph.
|
|
Since the Lenders commit themselves irrevocably to the French Authorities in charge of monitoring the CIRR mechanism, any prepayment (whether voluntary, involuntary or mandatory, including following the acceleration of the Loan) will be subject to the mandatory payment by the Borrower of the amount calculated in liaison with the French Authorities two (2) Business Days prior to the prepayment date by taking into account the differential (the “Rate Differential”) between the CIRR and the prevailing market yield (currently ISDAFIX) for each installment to be prepaid and applying such Rate Differential to the remaining residual period of such installment and discounting to the net present value as described below. Each of these Rate Differentials will be applied to the corresponding installment to be prepaid during the period starting on the date on which such prepayment is required to be made and ending on the original Repayment Date (as adjusted following any previous prepayments) for such installment and:
|
|
(A)
|
the net present value of each corresponding amount resulting from the above calculation will be determined at the corresponding market yield; and
|
|
(B)
|
if the cumulated amount of such present values is negative, no amount shall be due to the Borrower or from the Borrower.
|
|
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)
|
Unless otherwise expressly provided, all payments by the Borrower pursuant to this Agreement or any other Loan Document shall be made by the Borrower to the
|
|
Facility Agent for the pro rata account of the Lenders entitled to receive such payment. 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)
|
Each Lender hereby instructs the Facility Agent, with respect to any portion of the Loan held by such Lender, to pay directly to such Lender interest thereon at the Fixed Rate or (if the proviso to Section 5.1.10 applies) the Floating Rate, on the basis that (if the Fixed Rate applies) such Lender will, where amounts are payable to Natixis by that Lender under the Interest Stabilisation Agreement, account directly to Natixis for any such amounts payable by that Lender under the Interest Stabilisation 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 be made on the next succeeding Business Day and such extension of time shall be included in computing interest and fees, if any, in connection with such payment.
|
|
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)
|
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.
|
|
a)
|
Subject to paragraph c) below, each party (other than the Borrower) shall, within ten Business Days of a reasonable request by another party (other than the Borrower):
|
|
b)
|
If a party confirms to another party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that party shall notify that other party reasonably promptly.
|
|
c)
|
Paragraph a) above shall not oblige any Lender or the Facility Agent to do anything, and paragraph a)(iii) above shall not oblige any other party to do anything, which would or might in its reasonable opinion constitute a breach of:
|
|
d)
|
If a party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such party shall be treated for the purposes of the Loan Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the party in question provides the requested confirmation, forms, documentation or other information.
|
|
e)
|
Each party may make a FATCA Deduction from a payment under this Agreement that it is required to be made by FATCA, and any payment required in connection with that FATCA Deduction, and no party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
|
a)
|
the Facility Agent fails to respond to a request under Section 4.13 and a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party;
|
|
b)
|
the information supplied by the Facility Agent pursuant to Section 4.13 indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party; or
|
|
c)
|
the Facility Agent notifies the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party;
|
|
a)
|
a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorized to act with respect to this Agreement and each other Loan Document and as to the truth and completeness of the attached:
|
|
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 and, if the Coface Insurance Policy is to be re-issued or replaced on or about the Actual Delivery Date, Exhibit B-3 hereto; and
|
|
c)
|
Clifford Chance US LLP, United States tax counsel to the Facility Agent for the benefit of the Lenders, covering the matters set forth in Exhibit B-4 hereto,
|
|
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 invoice and supporting documents received by the Builder from the Borrower pursuant to Appendix C of the Construction Contract in relation to the Non-Yard Costs to be financed and a declaration from the Borrower and the Builder in substantially the form set forth in Exhibit D hereto that the requirement for a minimum 30% French content in respect of Non-Yard Costs and change orders in aggregate has been fulfilled;
|
|
b)
|
a copy of the final commercial invoice from the Builder showing the amount of the Contract Price (including the Non-Yard Costs and the Other Basic Contract Price Increases) and the portion thereof payable to the Builder on the Actual Delivery Date under the Construction Contract; and
|
|
c)
|
copies of the wire transfers for all payments by the Borrower to the Builder under the Construction Contract in respect of the Basic Contract Price to the extent not already provided as part of the drawdown conditions for drawdowns made by the Original Borrower.
|
|
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 as would not reasonably be expected to result in a Material Adverse Effect.
|
|
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)
|
The Obligations rank at least pari passu in right of payment and in all other respects with all other unsecured unsubordinated Indebtedness of the Borrower other than Indebtedness preferred as a matter of law.
|
|
b)
|
As at the date of this Agreement, the provisions of this Agreement which permit or restrict the granting of Liens are no less favorable than the provisions permitting or restricting the granting of Liens in any other agreement entered into by the Borrower with any other person providing financing or credit to the Borrower.
|
|
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)
|
as soon as the Borrower becomes aware thereof, notice of any event which, in its reasonable opinion, would be expected to materially adversely affect the business, operations or financial condition of the Borrower and its Subsidiaries taken as a whole;
|
|
g)
|
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
|
|
h)
|
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 (including an update to any information and projections previously provided to the Lenders where these have been prepared and are available);
|
|
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 and anti-corrupt practices 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 ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions.
|
|
a)
|
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)
|
cause the Purchased Vessel to be kept in such condition as will entitle her to classification by a classification society of recognized standing;
|
|
c)
|
provide the following to the Facility Agent with respect to the Purchased Vessel:
|
|
(i)
|
evidence as to the ownership of the Purchased Vessel by the Borrower or one of the Borrower’s wholly owned Subsidiaries; and
|
|
(ii)
|
evidence of no recorded Liens on the Purchased Vessel, other than Liens permitted pursuant to Section 7.2.3;
|
|
d)
|
within seven days after the Actual Delivery Date, provide the following to the Facility Agent with respect to the Purchased Vessel:
|
|
(i)
|
evidence of the class of the Purchased Vessel; and
|
|
(ii)
|
evidence as to all required insurance being in effect 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(b), 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)
|
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 (b), 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);
|
|
c)
|
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;
|
|
d)
|
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 becomes a Subsidiary of the Borrower and were not created by the Borrower or any of its Subsidiaries in anticipation thereof;
|
|
e)
|
Liens securing Government-related Obligations;
|
|
f)
|
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;
|
|
g)
|
Liens of carriers, warehousemen, mechanics, material-men and landlords incurred in the ordinary course of business for sums not overdue or being diligently contested in good faith by appropriate proceedings;
|
|
h)
|
Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits;
|
|
i)
|
Liens for current crew’s wages and salvage;
|
|
j)
|
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;
|
|
k)
|
Liens on Vessels that:
|
|
l)
|
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 favor of banks or other depository institutions;
|
|
m)
|
Liens in respect of rights of set-off, recoupment and holdback in favor of credit card processors securing obligations in connection with credit card processing services incurred in the ordinary course of business; and
|
|
n)
|
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 Capitalization 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 Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
|
|
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 authorizes 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, reorganization, 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 authorizes 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 authorizing, 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)
|
contravene or be in breach of the terms of the COFACE Insurance Policy or the arrangements with Natixis DAI relating to the CIRR (if the Fixed Rate applies) shall be effective unless consented to by, as applicable, COFACE and/or Natixis DAI;
|
|
b)
|
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;
|
|
c)
|
modify this Section 11.1 or change the definition of “Required Lenders” shall be made without the consent of each Lender;
|
|
d)
|
increase the Commitment of any Lender shall be made without the consent of such Lender;
|
|
e)
|
reduce any fees described in Article III payable to any Lender shall be made without the consent of such Lender;
|
|
f)
|
extend the Commitment Termination Date of any Lender shall be made without the consent of such Lender;
|
|
g)
|
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
|
|
h)
|
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
|
|
b)
|
So long as Citibank Europe plc, UK Branch 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 to such email address notified by the Facility Agent to the Borrower; provided that any Communication requested pursuant to Section 7.1.1(h) shall be in a format acceptable to the Borrower and the Facility Agent.
|
|
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 Authorization System and the Platform is secured through a single user per deal authorization 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
|
|
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, each Lender and Coface; 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 any other agreements required by the Facility Agent or, if the Fixed Rate applies, Natixis 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.
|
|
a)
|
The Coface Insurance Policy will cover 100% of the Loan.
|
|
b)
|
The Coface Premium will equal 2.35% of the aggregate principal amount of the Loan as at the Actual Delivery Date.
|
|
c)
|
If, after the Actual Delivery Date, the Borrower prepays all or part of the Loan in accordance with this Agreement, Coface shall reimburse to the ECA Agent for the account of the Borrower an amount equal to 80% of all or a corresponding proportion of the unexpired portion of the Coface Premium, having regard to the amount of the prepayment and the remaining term of the Loan, such amount to be calculated in accordance with the following formula:
|
|
a)
|
Promptly upon receipt of the Coface Insurance Policy from Coface, the ECA Agent shall (subject to any confidentiality undertakings given to Coface by the ECA Agent pursuant to the terms of the Coface Insurance Policy) send a copy thereof to the Borrower.
|
|
b)
|
The ECA 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 Coface under the Coface Insurance Policy as necessary to ensure that the Lenders obtain the support of Coface pursuant to the Coface Insurance Policy.
|
|
c)
|
Each Lender will co-operate with the ECA 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 Coface Insurance Policy and each Interest Stabilisation Agreement continues in full force and effect and shall indemnify and hold harmless each other Lender in the event that the Coface Insurance Policy or such Interest Stabilisation Agreement (as the case may be) does not continue in full force and effect due to its gross negligence or willful default or due to a voluntary change in status which results in it no longer being eligible for CIRR interest stabilisation.
|
|
e)
|
The ECA Agent shall:
|
|
a)
|
the Republic of France and any French Authority 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 Republic of France and any French Authority with information concerning the transactions to be handled by it under this Agreement; and
|
|
(ii)
|
disclose information concerning the subsidized 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.
|
ROYAL CARIBBEAN CRUISES LTD.
|
|||
By _____________________________
|
|||
Name:
|
|||
Title:
|
|||
Address:
|
1050 Caribbean Way
|
||
Miami, Florida 33132
|
|||
Facsimile No.:
|
(305) 539-0562
|
||
Email:
|
agibson@rccl.com
|
||
bstein@rccl.com
|
|||
Attention:
|
Vice President, Treasurer
|
||
With a copy to:
|
General Counsel
|
||
SUMITOMO MITSUI BANKING
CORPORATION EUROPE LIMITED, PARIS
BRANCH as ECA Agent and a Lender
|
||||
Commitment
|
||||
20% of the Maximum
|
By ___________________________________
|
|||
Loan Amount
|
Name:
|
|||
Title:
|
||||
1/3/5 rue Paul Cézanne
|
||||
75008 Paris
|
||||
France
|
||||
Attention: Cedric Le Duigou
|
||||
Guillaume Branco
|
||||
Cam Truong
|
||||
Claire Lucien
|
||||
Fax No: +33 1 44 90 48 01
|
||||
Tel No:
|
||||
Cedric Le Duigou:
|
+33 1 44 90 48 83
|
|||
Guillaume Branco:
|
+33 1 44 90 48 71
|
|||
Cam Truong:
|
+33 1 44 90 48 51
|
|||
Claire Lucien
|
+33 1 44 90 48 49
|
|||
E-mail :
|
||||
cedric_leduigou@fr.smbcgroup.com
|
||||
guillaume_branco@fr.smbcgroup.com
|
||||
cam_truong@fr.smbcgroup.com
|
||||
claire_lucien@fr.smbcgroup.com
|
||||
FRPAGTFD@fr.smbcgroup.com
|
CITIBANK N.A., LONDON BRANCH as
Global Coordinator and a Lender
|
|||||
Commitment
|
|||||
21% of the Maximum
|
By ___________________________________
|
||||
Loan Amount
|
Name:
|
||||
Title:
|
|||||
Citigroup Centre
|
|||||
Canada Square
|
|||||
London E14 5LB
|
|||||
United Kingdom
|
|||||
Attention:
|
Konstantinos Frangos
|
||||
Francois Turpault
|
|||||
Kara Catt
|
|||||
Romina Coates
|
|||||
Fax No:
|
+44 20 7986 4881
|
||||
Tel No:
|
+44 20 7986 3035 /
|
||||
+44 20 7508 0344
|
|||||
+44 20 7986 4824
|
|||||
+44 20 7986 5017
|
|||||
E-mail :
|
|||||
konstantinos.frangos@citi.com
|
|||||
francois.turpault@citi.com
|
|||||
kara.catt@citi.com
|
|||||
romina.coates@citi.com
|
BANCO BILBAO VIZCAYA ARGENTARIA,
PARIS BRANCH as Lender
|
|||||
Commitment
|
|||||
2% of the Maximum
|
By ___________________________________
|
||||
Loan Amount
|
Name:
|
||||
Title:
|
|||||
29 avenue de l'Opéra
|
|||||
75001 Paris
|
|||||
France
|
|||||
Attention:
|
David Peyroux
|
||||
Laura Luca de Tena
|
|||||
Maria Merodio
|
|||||
Fax No:
|
+33 1 44 86 84 45
|
||||
Tel No:
|
+33 1 44 86 83 98 /
|
||||
+33 1 44 86 83 21 /
|
|||||
+33 1 44 86 84 45
|
|||||
E-mail :
|
david.peyroux@bbva.com /
|
||||
laura.luca@bbva.com /
|
|||||
asuncion.merodio@bbva.com
|
BANCO SANTANDER, S.A. PARIS BRANCH
as Lender
|
|||||
Commitment
|
|||||
12% of the Maximum
|
By ___________________________________
|
||||
Loan Amount
|
Name:
|
||||
Title:
|
|||||
Lending Office:
|
|||||
40 rue de Courcelles
|
|||||
75008 Paris
|
|||||
France
|
|||||
Operational address:
|
|||||
Ciudad Financiera
|
|||||
Avenida de Cantabria s/n
|
|||||
Edificio Encinar 2a planta
|
|||||
28600 Boadilla del Monte
|
|||||
Spain
|
|||||
Attention:
|
Elise Regnault
|
||||
Matias Herkommer
|
|||||
Vanessa Berrio
|
|||||
Jose Luis Diaz Cassou
|
|||||
Caroline Pereira Pantaleao
|
|||||
Fax No:
|
+34 91 257 1682
|
||||
Tel No:
|
+34 912893722 /
|
||||
+34 912891127
|
|||||
+34 912891028
|
|||||
+34 91 289 1370
|
|||||
+33 1 53 53 70 35
|
|||||
E-mail :
|
|||||
elise.regnault@gruposantander.com
|
|||||
mherkommer@gruposantander.com
|
|||||
vaberrio@gruposantander.com
|
|||||
joldiaz@gruposantander.com
|
|||||
cpantaleao@gruposantander.com
|
HSBC FRANCE as Lender
|
|||||
Commitment
|
|||||
21% of the Maximum
|
By ___________________________________
|
||||
Loan Amount
|
Name:
|
||||
Title:
|
|||||
HSBC France – Global Banking Agency
Operations (GBAO) Transaction
Manager Unit
|
|||||
103 avenue des Champs Elysées
|
|||||
75008 Paris
|
|||||
France
|
|||||
Attention:
|
Fatma Bao
|
||||
Elie Eh El Hayek
|
|||||
Fax No:
|
+ 33 1 40 70 28 80
|
||||
Tel No:
|
+ 33 1 40 70 79 15 /
|
||||
+ 33 1 57 57 01 58
|
|||||
E-mail :
|
|||||
fatma.bao@hsbc.fr
|
|||||
elie.eh.el.hayek@hsbc.fr
|
|||||
Copy to:
|
|||||
HSBC France
|
|||||
103 avenue des Champs Elysées
|
|||||
75008 Paris
|
|||||
France
|
|||||
Attention:
|
Julie Bellais
|
||||
Gilles Pinot de Villechenon
|
|||||
Fax No:
|
+ 33 1 40 70 78 93
|
||||
Tel No:
|
+ 33 1 40 70 28 59 /
|
||||
+ 33 1 40 70 35 07
|
|||||
E-mail :
|
|||||
julie.bellais@hsbc.fr
|
|||||
gilles.pinot.de.villechenon@hsbc.fr
|
SOCIÉTÉ GÉNÉRALE as Lender
|
|||||
Commitment
|
|||||
24% of the Maximum
|
By ___________________________________
|
||||
Loan Amount
|
Name:
|
||||
Title:
|
|||||
Lending Office:
|
|||||
29 Boulevard Haussmann
|
|||||
75009 Paris
|
|||||
France
|
|||||
Address for Operational / Servicing
matters:
|
|||||
Attention: Bouchra BOUMEZOUED /
|
|||||
Aramata COULIBALY
|
|||||
Société Générale
|
|||||
189, rue d’Aubervilliers
|
|||||
75886 PARIS CEDEX 18
|
|||||
France
|
|||||
Tel No:
|
+33 1 57 29 13 12
|
||||
+33 1 57 29 03 30
|
|||||
Fax No
|
+33 1 46 92 45 98
|
||||
Email:
|
par-oper-caf-
|
||||
dmt6@sgcib.com
|
|||||
For Credit matters:
|
|||||
OPER/FIN/SMO/EXT
|
|||||
Attention: Sebastien LEOCADIE /
Olivier GUEGUEN
|
|||||
Tel No:
|
+33 1 58 98 29 85
|
||||
+33 1 42 13 07 52
|
|||||
Fax No
|
+33 1 46 92 45 97
|
||||
Email:
|
|||||
sebastien.leocadie@sgcib.com
|
|||||
olivier.gueguen@sgcib.com
|
|||||
par-oper-fin-smo-ext@sgcib.com
|
CITIBANK EUROPE PLC, UK BRANCH
as Facility Agent
|
|||||
By ___________________________________
|
|||||
Name:
|
|||||
Title:
|
|||||
5th Floor Citigroup Centre
|
|||||
Mail drop CGC2 05-65
|
|||||
25 Canada Square Canary Wharf
|
|||||
London E14 5LB
|
|||||
U.K.
|
|||||
Fax No
|
+44 20 7492 3980
|
||||
Attention:
|
EMEA Loans Agency
|
||||
Existing Borrower
|
||
SIGNED by Dina Anastas
for and on behalf of
SAINTIAMI FINANCE LIMITED)
|
)
)
)
|
/s/ Dina Anastas
Attorney-in-Fact
|
New Borrower
|
||
SIGNED by Marzena Legezynska
for and on behalf of
ROYAL CARIBBEAN CRUISES LTD.
|
)
)
)
)
|
/s/ Marzena Legezynska
Attorney-in-Fact
|
Facility Agent
|
||
SIGNED by Simon Hartley
for and on behalf of
CITIBANK EUROPE PLC, UK BRANCH
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
Security Trustee
|
||
SIGNED by Simon Hartley
for and on behalf of
CITICORP TRUSTEE COMPANY LIMITED
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
Global Coordinator
|
||
SIGNED by Alex Taylor
for and on behalf of
CITIBANK N.A., LONDON BRANCH
|
)
)
)
)
|
/s/ Alex Taylor
Attorney in-fact
|
The ECA Agent
|
||
SIGNED by Simon Hartley
for and on behalf of
SUMITOMO MITSUI BANKING CORPORATION
EUROPE LIMITED, PARIS BRANCH
|
)
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
French Coordinating Bank
|
||
SIGNED by Simon Hartley
for and on behalf of
HSBC FRANCE
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
The Original Lenders
|
||
SIGNED by Simon Hartley
for and on behalf of
BANCO BILBAO VIZCAYA ARGENTARIA, PARIS BRANCH
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
SIGNED by Simon Hartley
for and on behalf of
BANCO SANTANDER, S.A. PARIS BRANCH
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
SIGNED by Alex Taylor
for and on behalf of
CITIBANK N.A., LONDON BRANCH
|
)
)
)
)
|
/s/ Alex Taylor
Attorney in-fact
|
SIGNED by Simon Hartley
for and on behalf of
HSBC FRANCE
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
SIGNED by Simon Hartley
for and on behalf of
SOCIÉTÉ GÉNÉRALE
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
SIGNED by Simon Hartley
for and on behalf of
SUMITOMO MITSUI BANKING CORPORATION EUROPE
LIMITED, PARIS BRANCH
|
)
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
The Mandated Lead Arrangers
|
||
SIGNED by Simon Hartley
for and on behalf of
BANCO BILBAO VIZCAYA ARGENTARIA, PARIS BRANCH
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
SIGNED by Simon Hartley
for and on behalf of
BANCO SANTANDER, S.A. PARIS BRANCH
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
SIGNED by Alex Taylor
for and on behalf of
CITIBANK N.A., LONDON BRANCH
|
)
)
)
)
|
/s/ Alex Taylor
Attorney in-fact
|
SIGNED by Simon Hartley
for and on behalf of
HSBC FRANCE
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
SIGNED by Simon Hartley
for and on behalf of
SOCIÉTÉ GÉNÉRALE
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
SIGNED by Simon Hartley
for and on behalf of
SUMITOMO MITSUI BANKING CORPORATION EUROPE
LIMITED, PARIS BRANCH
|
)
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
Private & Confidential
|
|||||
Dated
|
22 June 2016
|
||||
AZAIREMIA FINANCE LIMITED
as Existing Borrower
ROYAL CARIBBEAN CRUISES LTD.
as New Borrower
CITIBANK EUROPE PLC, UK BRANCH
as Facility Agent
CITICORP TRUSTEE COMPANY LIMITED
as Security Trustee
CITIBANK N.A., LONDON BRANCH
as Global Coordinator
HSBC FRANCE
as French Coordinating Bank
SUMITOMO MITSUI BANKING CORPORATION EUROPE LIMITED, PARIS
BRANCH
as ECA Agent
BANCO BILBAO VIZCAYA ARGENTARIA, PARIS BRANCH, BANCO
SANTANDER, S.A. PARIS BRANCH, CITIBANK N.A., LONDON BRANCH, HSBC
FRANCE, SOCIÉTÉ GÉNÉRALE and SUMITOMO MITSUI BANKING
CORPORATION EUROPE LIMITED, PARIS BRANCH
as Mandated Lead Arrangers
AND
THE BANKS AND FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1
as Original Lenders
|
|||||
NOVATION AGREEMENT
relating to a secured credit facility
agreement for Hull No. K34 at STX France
S.A.
|
|||||
NORTON ROSE FULBRIGHT
|
Clause
|
Page
|
||
1
|
Definitions
|
2
|
|
2
|
Consent and agreement of the Finance Parties
|
4
|
|
3
|
Assumption of liability and obligations
|
4
|
|
4
|
Amendment and restatement of Principal Agreement
|
6
|
|
5
|
Loan currency, Additional Advances and undrawn Commitments under the Principal Agreement
|
6
|
|
6
|
Conditions
|
9
|
|
7
|
Fixed rate
|
10
|
|
8
|
Representations and warranties
|
10
|
|
9
|
Covenants
|
11
|
|
10
|
Commitment and cancellation by the New Borrower
|
12
|
|
11
|
Satisfaction of Receivable, releases and Coface Insurance Policy
|
14
|
|
12
|
Assignment and transfers
|
14
|
|
13
|
Miscellaneous and notices
|
15
|
|
14
|
Governing law and jurisdiction
|
15
|
|
Schedule 1 The Original Lenders
|
17
|
||
Schedule 2 Conditions precedent
|
20
|
||
Schedule 3 Form of Novated Credit Agreement
|
22
|
(1)
|
AZAIREMIA FINANCE LIMITED as transferor (the Existing Borrower);
|
(2)
|
ROYAL CARIBBEAN CRUISES LTD. as transferee (the New Borrower);
|
(3)
|
CITIBANK EUROPE PLC, UK BRANCH as facility agent for the other Finance Parties (the Facility Agent);
|
(4)
|
CITICORP TRUSTEE COMPANY LIMITED as security trustee for the other Finance Parties (the Security Trustee);
|
(5)
|
CITIBANK N.A., LONDON BRANCH as global coordinator (the Global Coordinator);
|
(6)
|
HSBC FRANCE as French coordinating bank (the French Coordinating Bank);
|
(7)
|
SUMITOMO MITSUI BANKING CORPORATION EUROPE LIMITED, PARIS BRANCH as ECA agent (the ECA Agent);
|
(8)
|
BANCO BILBAO VIZCAYA ARGENTARIA, PARIS BRANCH, BANCO SANTANDER, S.A. PARIS BRANCH, CITIBANK N.A., LONDON BRANCH, HSBC FRANCE, SOCIÉTÉ GÉNÉRALE and SUMITOMO MITSUI BANKING CORPORATION EUROPE LIMITED, PARIS BRANCH as Mandated Lead Arrangers; and
|
(9)
|
THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 as Original Lenders.
|
(A)
|
By a facility agreement dated on or about the date of this Agreement (the Principal Agreement) and made between (1) the Existing Borrower as borrower, (2) the banks and financial institutions named therein as original lenders, (3) the Mandated Lead Arrangers as mandated lead arrangers, (4) the Facility Agent as facility agent, (5) the Security Trustee as security trustee (6) the Global Coordinator as global coordinator, (7) the French Coordinating Bank as French coordinating Bank and (8) the ECA Agent as ECA agent, the Lenders have agreed to make available a loan of up to €555,288,000 to the Existing Borrower in connection with the purchase by the Existing Borrower of the Receivable from the Seller pursuant to the Receivable Purchase Agreement.
|
(B)
|
It is intended that on the Actual Delivery Date, and subject to the delivery of the Vessel to, and acceptance of the Vessel by, the New Borrower under the Building Contract and by way of satisfying the obligation of the New Borrower to pay the Receivable to the Existing Borrower (as purchaser of the Receivable from the Seller pursuant to the Receivable Purchase Agreement), all of the rights and obligations of the Existing Borrower in respect of the Principal Agreement shall be transferred by novation by the Existing Borrower to the New Borrower.
|
(C)
|
The parties have also agreed that on the date of the novation contemplated in Recital (B) the Novated Loan Balance at such date shall be converted into Dollars, certain additional advances shall be made to the New Borrower and the Principal Agreement shall be amended and restated (in the form of the Novated Credit Agreement) pursuant to the terms of this Agreement.
|
(D)
|
This Agreement sets out the terms and conditions upon which (i) the parties hereto shall agree to such novation, amendment and restatement of the Principal Agreement and (ii) the Lenders shall agree to make additional advances to the New Borrower.
|
1
|
Definitions
|
1.1
|
Definitions
|
(a)
|
the amount of the Final Payment after any deductions permitted under the Buyer Consent Agreement;
|
(b)
|
€555,288,000; and
|
(c)
|
the amount referred to in clause 2.1(c) of the Principal Agreement.
|
(a)
|
the Facility Agent has notified the parties in writing that it has received all of the documents and other evidence referred to in clause 6; and
|
(b)
|
such time falls before the Back Stop Date (as defined in the Receivable Purchase Agreement and subject to clause 10.2).
|
1.2
|
Headings
|
1.3
|
Construction
|
1.4
|
References to Novated Credit Agreement
|
1.5
|
References to Security Trustee and Finance Parties
|
2
|
Consent and agreement of the Finance Parties
|
3
|
Assumption of liability and obligations
|
3.1
|
Substitution
|
(a)
|
the New Borrower shall be, and is hereby made, a party to the Principal Agreement in substitution for the Existing Borrower; and
|
(b)
|
the Principal Agreement shall be amended and restated as set out in clause 4.
|
3.2
|
Assumption of liability
|
3.3
|
Release
|
3.4
|
No liability
|
3.5
|
Novated Loan Balance
|
(a)
|
following each Drawdown Date (and at any other time upon reasonable request), it will provide the New Borrower with an update in relation to the amount of the outstanding Loan;
|
(b)
|
not less than ten Banking Days prior to the anticipated Actual Delivery Date, it will consult with the New Borrower regarding the anticipated amount of the Novated Loan Balance as at the anticipated Novation Effective Time to enable the New Borrower to confirm and verify this amount (having regard to paragraphs (a) and (b) of the definition of Novated Loan Balance) and satisfy itself that it is an amount which reflects the expected drawdown of the Loan during the period prior to the Actual Delivery Date and that the same does not include any Unsecured Advances. The New Borrower shall promptly confirm its acceptance of the amount or, if applicable, raise any questions as to the calculation of this amount with the Facility Agent so that the amount can be approved prior to the Novation Effective Time; and
|
(c)
|
as part of the process of agreeing the Novated Loan Balance it will participate in the preparation of the delivery funds flow agreement referred to in clause 13.6 of the Buyer Consent Agreement.
|
3.6
|
Prepayment in respect of overpaid Purchase Price
|
(a)
|
the relevant amount of such prepayment may, if requested by the New Borrower, be deducted from the amount of the Additional Advances to be made available to the New Borrower on the Novation Effective Date and, where the New Borrower has requested that the prepayment required under this clause 3.6 be deducted from the Additional Advances, an actual payment shall only be required by the New Borrower if the prepayment amount exceeds the aggregate amount of the Additional Advances to be advanced to the New Borrower; and
|
(b)
|
the New Borrower shall be entitled to exercise its rights under clause 13.2(b) of the Buyer Consent Agreement.
|
3.7
|
Notification of set-off
|
4
|
Amendment and restatement of Principal Agreement
|
5
|
Loan currency, Additional Advances and undrawn Commitments under the Principal Agreement
|
5.1
|
Currency conversion
|
5.2
|
Additional Advances
|
(a)
|
an amount of up to 80% of the incurred Non-Yard Costs (of up to €76,000,000) and the Other Basic Contract Price Increases paid or to be paid by the New Borrower under the Building Contract and in a maximum aggregate amount of €68,300,000; and
|
(b)
|
an amount of up to 80% of the Steel Price Adjustment Excess paid or to be paid by the New Borrower under the under the Building Contract and in a maximum amount of €27,712,000; and
|
(c)
|
an amount equal to 100% of the Coface Premium as calculated in accordance with Section 11.13.1(b) of the Novated Credit Agreement as at the Novation Effective Time, which amount shall be divided into two parts:
|
(i)
|
the amount payable by the New Borrower to Coface in respect of such part of the Coface Premium which remains payable to Coface at the Novation Effective Date; and
|
(ii)
|
the balance, which shall, subject to the New Borrower’s set-off rights referred to in clause 13.3 of the Buyer Consent Agreement, be payable by the New Borrower to the Seller in reimbursement of the amounts which have been deducted from the Payment Amounts in respect of the Coface Premium pursuant to the Receivable Purchase Agreement,
|
5.3
|
Adjustment of Additional Advances
|
(a)
|
the difference obtained by subtracting the Spot Rate of Exchange on the Actual Delivery Date from the Weighted Average Rate of Exchange; and
|
(b)
|
the Novated Loan Balance.
|
5.4
|
Undrawn Commitments under the Principal Agreement
|
(a)
|
the Existing Borrower has not drawn the full amount of the Total Commitments under the Principal Agreement at the Novation Effective Date; or
|
(b)
|
the Total Commitments under the Principal Agreement have been cancelled or reduced before the Novation Effective Date and this is not as a result of a cancellation of the Building Contract by the Seller due to a Buyer Specified Event; or
|
(c)
|
it is not possible for the Facility to be made available to the Existing Borrower to the satisfaction of the Seller and the New Borrower,
|
(i)
|
the amounts payable to the Lenders in respect of arrangement fees in respect of the Facility (as set out in the relevant Fee Letter attached to any Fee Letter signed by the New Borrower) and the Coface Premium payable to Coface, shall continue to be payable in full and the New Borrower shall be required, where it does not currently have responsibility for the full payment of all those amounts, to assume responsibility for the payment of such amounts (it being acknowledged that the New Borrower shall not have any responsibility for payment of amounts of Coface Premium already paid to Coface pursuant to the Receivable Purchase Agreement where these amounts have not been (or will not be) refunded due to the cancellation of the Facility); and
|
(ii)
|
it shall be liable to pay commitment fees on the basis set out in Section 3.4 (Commitment Fees) of the Novated Credit Agreement (but without double counting in relation to any amounts due under clause 10.1).
|
5.5
|
Borrowing procedure for Additional Advances
|
5.6
|
Notification of New Borrower’s hedging arrangements
|
(a)
|
In connection with the calculation of the Weighted Average Rate of Exchange, the New Borrower agrees to provide the Facility Agent with the information referred to in this clause
|
(b)
|
The New Borrower shall deliver to the Facility Agent (who shall promptly forward the same to the Lenders and Coface), on a quarterly basis following the First Payment Date (as defined in the Receivable Purchase Agreement), a schedule of the Weighted Average Rate, accompanied by copies of confirmations or screen shots evidencing the entry into, termination or modification of any trades or fixings effected during such quarter under any agreements entered into by the New Borrower from time to time in spot or forward currency markets for the purchase of euros with Dollars in order to pay the Contract Price or fix the NYC Applicable Rate.
|
(c)
|
Notwithstanding paragraph (b) above, on or between the tenth and second Banking Days prior to the date on which the New Borrower intends to deliver the Loan Request (as defined in the Novated Credit Agreement) to the Facility Agent, the New Borrower shall deliver to the Facility Agent (who shall promptly forward the same to the Lenders and Coface) the New Borrower's preliminary written calculation in reasonable detail of the Weighted Average Rate of Exchange (to the extent not previously provided) and the New Borrower shall also provide copies or other evidence of such currency hedges as the Facility Agent may reasonably require.
|
5.7
|
Alternative Spot Rate of Exchange
|
6
|
Conditions
|
6.1
|
Documents and evidence
|
(a)
|
by no later than the Signing Date, the Facility Agent, or its duly authorised representative, shall have received the documents and evidence specified in Part 1 of Schedule 2 in form and substance satisfactory to the Facility Agent (acting on the instructions of the Lenders and Coface);
|
(b)
|
by no later than the Initial Effective Date, the Facility Agent, or its duly authorised representative, shall have received the documents and evidence specified in Part 2 of Schedule 2 in form and substance satisfactory to the Facility Agent (acting on the instructions of the Lenders and Coface); and
|
(c)
|
by no later than the Novation Effective Time, the Facility Agent, or its duly authorised representative, shall have received each of the documents and evidence set out in section 5.1 of the Novated Credit Agreement (but subject to the proviso to Section 5.1.10) and confirmation in writing from the New Borrower to the Facility Agent that it will take delivery of the Vessel under the Building Contract and the actual date on which delivery shall
|
|
occur, which confirmation shall be given immediately prior to the occurrence of the Novation Effective Time.
|
6.2
|
General conditions precedent
|
(a)
|
the representations and warranties of the New Borrower contained in clause 8 are true and correct in all material respects (except for such representations and warranties that are qualified by materiality or non-existence of a material adverse effect which shall be accurate in all respects) on and as of each such time as if each was made with respect to the facts and circumstances existing at such time; and
|
(b)
|
no Event of Default and no Prepayment Event (each as defined in the Novated Credit Agreement) shall have occurred and be continuing or would result from the novation of the Principal Agreement or the making of the Additional Advances pursuant to this Agreement.
|
6.3
|
Waiver of conditions precedent
|
6.4
|
Confirmation of conditions precedent
|
7
|
Fixed rate
|
8
|
Representations and warranties
|
8.1
|
Existing Borrower representations and warranties
|
(a)
|
in clause 7.1 of the Principal Agreement on (i) the date of this Agreement and (ii) the Initial Effective Date; and
|
(b)
|
in clauses 7.1(a), 7.1(b), 7.1(c), 7.1(d) and 7.1(j) of the Principal Agreement on the Novation Effective Date,
|
8.2
|
New Borrower representations and warranties
|
8.3
|
Novation Effective Date representations by existing parties
|
(a)
|
it has not transferred (whether by way of security or otherwise) any of its rights or obligations under the Principal Agreement (other than (i) any transfers or assignments by a Lender in accordance with the provisions of clause 14 (Assignment, transfer and Facility Office) of the Principal Agreement or (ii) any replacement of the Facility Agent, Security Trustee, the French Coordinating Bank or the ECA Agent in accordance with the applicable provisions of the Agency and Trust Deed and the Security Trust Deed, which in each case, have previously been disclosed to the New Borrower where consent or approval of the New Borrower is not otherwise required in relation to any such assignments or transfers); and
|
(b)
|
it has duly performed all of its obligations under the Principal Agreement.
|
9
|
Covenants
|
9.1
|
New Borrower covenants
|
(a)
|
Section 7.1.1a) and b) (Annual and quarterly financial information);
|
(b)
|
Section 7.1.2 (Approvals and other consents);
|
(c)
|
Section 7.1.3 (Compliance with laws, etc.); and
|
(d)
|
the first sentence of Section 7.1.7 (Coface insurance policy/French government/CIRR representative requirement).
|
9.2
|
Notification of increased costs, etc.
|
(a)
|
it intends to claim for any increased cost under Sections 4.3 (Increased LIBO Rate Loan Costs, etc.) or 4.5 (Increased capital costs) or for any Covered Taxes (as defined in the Novated Credit Agreement) under Section 4.6 (Taxes) or reserve costs under Section 4.7 (Reserve costs) of the Novated Credit Agreement for the period falling after the Novation Effective Date; or
|
(b)
|
any of the circumstances referred to in Sections 4.1 (LIBO Rate lending unlawful) or 4.2 (Deposits unavailable) apply to it,
|
9.3
|
Notification of anticipated buffer claims
|
9.4
|
Interest stabilisation
|
10
|
Commitment and cancellation by the New Borrower
|
10.1
|
Commitment Fees
|
10.2
|
Cancellation
|
10.3
|
Prepayment of Loan under the Principal Agreement
|
(a)
|
the provisions of clause 3 shall not apply and accordingly the Novation Effective Time shall not be capable of occurring; and
|
(b)
|
the Existing Borrower and the Finance Parties hereby acknowledge that the Loan will be prepaid in full on the Actual Delivery Date in accordance with clause 4.3(e) of the Principal Agreement but that the Principal Agreement shall otherwise continue in force in accordance with its terms and the Facility will continue to be available to the Existing Borrower pursuant to the terms of the Principal Agreement.
|
10.4
|
Coface Premium
|
10.5
|
Fixed rate breakage costs
|
(a)
|
voluntarily cancels all or any of the Commitment under clause 10.2;
|
(b)
|
voluntarily cancels all or any of the Commitment after it has exercised its rights under clause 4.3 of the Buyer Consent Agreement; or
|
(c)
|
subject to the proviso below, does not borrow the Maximum Loan Amount as a result of the Contract Price being reduced in accordance with Article III of the Building Contract (resulting in a corresponding cancellation of part of the Commitment),
|
(i)
|
if:
|
(A)
|
the Commitment is cancelled in full, 80% of €583,000,000; or
|
(B)
|
the Commitment is partially cancelled, the amount which is 80% of €583,000,000 minus the un-cancelled Commitment; and
|
(ii)
|
24 assumed semi-annual repayment instalments starting from the Expected Delivery Date at the Signing Date.
|
11
|
Satisfaction of Receivable, releases and Coface Insurance Policy
|
11.1
|
Receivable
|
11.2
|
Release of Security Documents on Novation Effective Date
|
(a)
|
the Mortgage will be released (but without prejudice to the Finance Parties’ obligation to release the Mortgage in accordance with clause 11.1 of the Buyer Consent Agreement);
|
(b)
|
the Borrower Assignment (and any security assigned thereunder) and the Share Security will be released;
|
(c)
|
the Security Trustee will be released from its obligations under the Security Trust Deed and the Agency and Trust Deed;
|
(d)
|
the Facility Agent, the French Coordinating Bank and the ECA Agent will be released from their respective obligations under the Agency and Trust Deed (on the basis that the provisions of Article X (The Facility Agent and the Coface Agent) of the Novated Credit Agreement will then apply); and
|
(e)
|
the Facility Guarantors shall be released from their obligations under the Facility Guarantees,
|
11.3
|
Coface Insurance Policy
|
12
|
Assignment and transfers
|
13
|
Miscellaneous and notices
|
13.1
|
Notices
|
1050 Caribbean Way
Miami
Florida 33132
|
|
Fax no:
|
+1 (305) 539-0562
|
Attn:
|
Vice President, Treasurer
|
Copy to:
|
General Counsel
|
13.2
|
Counterparts
|
13.3
|
Contracts (Rights of Third Parties) Act 1999
|
(a)
|
With the exception of Coface, no term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.
|
(b)
|
Notwithstanding any term of this Agreement, the consent of any person who is not a party to this Agreement is not required to amend or vary this Agreement at any time.
|
13.4
|
Rights of New Borrower under the Principal Agreement
|
13.5
|
New Borrower payments
|
13.6
|
Confidentiality
|
14
|
Governing law and jurisdiction
|
14.1
|
Law
|
14.2
|
Submission to jurisdiction
|
Existing Borrower
|
Walkers London office at present of 6 Gracechurch Street, London EC3V 0AT
|
New Borrower
|
RCL Cruises Ltd., Building 3, The Heights – Brooklands, Weybridge, Surrey, KT13 ONY, Attention: General Counsel
|
14.3
|
Waiver of immunity
|
Original Lender
|
Facility Office and contact details
|
Commitment
%
|
||
Banco Bilbao Vizcaya
Argentaria, Paris
Branch
|
29 avenue de l'Opéra
75001 Paris
France
|
3
|
||
Attention:
|
David Peyroux
Laura Luca de Tena
Maria Merodio
|
|||
Fax No:
Tel No:
|
+33 1 44 86 84 45
+33 1 44 86 83 98 /
+33 1 44 86 83 21 /
+33 1 44 86 84 45
|
|||
Email:
|
david.peyroux@bbva.com /
laura.luca@bbva.com /
asuncion.merodio@bbva.com
|
|||
Banco Santander,
S.A. Paris branch
|
Facility Office:
40 rue de Courcelles
75008 Paris
France
Operational address:
Ciudad Financiera
Avenida de Cantabria s/n
Edificio Encinar 2a planta
28600 Boadilla del Monte
Spain
|
15
|
||
Attention:
|
Elise Regnault
Matias Herkommer
Vanessa Berrio
Jose Luis Diaz Cassou
Caroline Pereira Pantaleao
|
|||
Fax No:
Tel No:
|
+34 91 257 1682
+34 912893722 /
+34 912891127
+34 912891028
+34 91 289 1370
+33 1 53 53 70 35
|
|||
E-mail:
elise.regnault@gruposantander.com
mherkommer@gruposantander.com
vaberrio@gruposantander.com
joldiaz@gruposantander.com
cpantaleao@gruposantander.com
|
Original Lender
|
Facility Office and contact details
|
Commitment
%
|
|
Citibank N.A.,
London Branch
|
Citigroup Centre
Canada Square
London E14 5LB
United Kingdom
|
21
|
|
Attention:
|
Konstantinos Frangos
Francois Turpault
Kara Catt
Romina Coates
|
||
Fax No:
Tel No:
|
+44 20 7986 4881
+44 20 7986 3035 /
+44 20 7508 0344
+44 20 7986 4824 /
+44 20 7986 5017
|
||
E-mail:
konstantinos.frangos@citi.com
francois.turpault@citi.com
kara.catt@citi.com
romina.coates@citi.com
|
|||
HSBC France
|
HSBC France – Global Banking Agency
Operations (GBAO) Transaction Manager
Unit 103 avenue des Champs Elysée
75008 Paris
France
|
21
|
|
Attention:
|
Fatma Bao
Elie Eh El Hayek
|
||
Fax No:
Tel No:
|
+ 33 1 40 70 28 80
+ 33 1 40 70 79 15 /
+ 33 1 57 57 01 58
|
||
E-mail:
fatma.bao@hsbc.fr
elie.eh.el.hayek@hsbc.fr
|
|||
Copy to:
HSBC France
103 avenue des Champs Elysées
75008 Paris
|
|||
Attention:
|
Julie Bellais
Gilles Pinot de Villechenon
|
||
Fax No:
Tel No:
|
+ 33 1 40 70 78 93
+ 33 1 40 70 28 59 /
+ 33 1 40 70 35 07
|
||
E-mail:
julie.bellais@hsbc.fr
gilles.pinot.de.villechenon@hsbc.fr
|
Original Lender
|
Facility Office and contact details
|
Commitment
%
|
||
Société Générale
|
Facility Office:
29 Boulevard Haussmann
75009 Paris
France
Address for Operational / Servicing matters:
Attention: Bouchra BOUMEZOUED / Aramata COULIBALY
Société Générale
189, rue d’Aubervilliers
75886 PARIS CEDEX 18
France
|
23
|
||
Tel No:
|
+33 1 57 29 13 12
+33 1 57 29 03 30
|
|||
Fax No:
|
+33 1 46 92 45 98
|
|||
Email: par-oper-caf-mt6@sgcib.com
|
||||
For Credit matters:
OPER/FIN/SMO/EXT
|
||||
Attention:
|
Sebastien LEOCADIE /
Olivier GUEGUEN
|
|||
Tel No:
|
+33 1 58 98 29 85
+33 1 42 13 07 52
|
|||
Fax No:
|
+33 1 46 92 45 97
|
|||
Email:
sebastien.leocadie@sgcib.com
olivier.gueguen@sgcib.com
par-oper-fin-smo-ext@sgcib.com
|
||||
Sumitomo Mitsui
Banking Corporation
Europe Limited, Paris
Branch
|
1/3/5 rue Paul Cézanne, 75008 Paris, France
|
17
|
||
Attention:
|
Cedric Le Duigou
Guillaume Branco
Cam Truong
Claire Lucien
|
|||
Fax No:
|
+33 1 44 90 48 01
|
|||
Tel No:
Cedric Le Duigou:
Guillaume Branco:
Cam Truong:
Claire Lucien:
|
+33 1 44 90 48 83
+33 1 44 90 48 71
+33 1 44 90 48 51
+33 1 44 90 48 49
|
|||
E-mail :
cedric_leduigou@fr.smbcgroup.com
guillaume_branco@fr.smbcgroup.com
cam_truong@fr.smbcgroup.com
claire_lucien@fr.smbcgroup.com
|
||||
100
|
1
|
Evidence that the conditions precedent set out in clause 9.1(a) of, and Schedule 3 Part 1 to, the Principal Agreement have been satisfied in full or waived in accordance with clause 9.4 of the Principal Agreement.
|
2
|
Documents equivalent to those referred to in Section 5.1.1 (Resolutions, etc.) of the Novated Credit Agreement in relation to the New Borrower and its execution of this Agreement, the Buyer Consent Agreement and any other Transaction Documents to which it is a party.
|
1
|
Evidence that the conditions precedent set out in clause 9.1(b) of, and Schedule 3 Part 2 to, the Principal Agreement have been satisfied in full or waived in accordance with clause 9.4 of the Principal Agreement.
|
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
|
|
SECTION 1.1. Defined Terms
|
2
|
SECTION 1.2. Use of Defined Terms
|
13
|
SECTION 1.3. Cross-References
|
13
|
SECTION 1.4. Accounting and Financial Determinations
|
13
|
ARTICLE II COMMITMENTS AND BORROWING PROCEDURES
|
|
SECTION 2.1. Commitment
|
14
|
SECTION 2.2. Commitment of the Lenders; Termination and Reduction of Commitments
|
14
|
SECTION 2.3. Borrowing Procedure
|
14
|
SECTION 2.4. Funding
|
16
|
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
|
|
SECTION 3.1. Repayments
|
16
|
SECTION 3.2. Prepayment
|
16
|
SECTION 3.3. Interest Provisions
|
18
|
SECTION 3.3.1. Rates
|
18
|
SECTION 3.3.2. [Intentionally omitted]
|
18
|
SECTION 3.3.3. Interest stabilisation
|
18
|
SECTION 3.3.4. Post-Maturity Rates
|
18
|
SECTION 3.3.5. Payment Dates
|
18
|
SECTION 3.3.6. Interest Rate Determination; Replacement Reference Banks
|
18
|
SECTION 3.4. Commitment Fees
|
19
|
SECTION 3.4.1. Payment
|
19
|
SECTION 3.5. Other Fees
|
19
|
ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS
|
|
SECTION 4.1. LIBO Rate Lending Unlawful
|
20
|
SECTION 4.2. Deposits Unavailable
|
20
|
SECTION 4.3. Increased LIBO Rate Loan Costs, etc.
|
21
|
SECTION 4.4. Funding Losses
|
22
|
SECTION 4.4.1. Indemnity
|
22
|
SECTION 4.4.2. Exclusion
|
24
|
SECTION 4.5. Increased Capital Costs
|
24
|
SECTION 4.6. Taxes
|
25
|
SECTION 4.7. Reserve Costs
|
27
|
SECTION 4.8. Payments, Computations, etc.
|
27
|
SECTION 4.9. Replacement Lenders, etc.
|
28
|
SECTION 4.10. Sharing of Payments
|
29
|
SECTION 4.10.1. Payments to Lenders
|
29
|
SECTION 4.10.2. Redistribution of payments
|
29
|
SECTION 4.10.3. Recovering Lender's rights
|
29
|
SECTION 4.10.4. Reversal of redistribution
|
29
|
SECTION 4.10.5. Exceptions
|
30
|
SECTION 4.11. Set-off
|
30
|
SECTION 4.12. Use of Proceeds
|
30
|
SECTION 4.13. FATCA Information
|
31
|
SECTION 4.14. Resignation of the Facility Agent
|
32
|
ARTICLE V CONDITIONS TO BORROWING
|
|
SECTION 5.1. Advance of the Loan
|
32
|
SECTION 5.1.1. Resolutions, etc.
|
32
|
SECTION 5.1.2. Opinions of Counsel
|
33
|
SECTION 5.1.3. Coface Insurance Policy
|
33
|
SECTION 5.1.4. Closing Fees, Expenses, etc.
|
33
|
SECTION 5.1.5. Compliance with Warranties, No Default, etc.
|
33
|
SECTION 5.1.6. Loan Request
|
34
|
SECTION 5.1.7. Foreign Exchange Counterparty Confirmations.
|
34
|
SECTION 5.1.8. Protocol of delivery
|
34
|
SECTION 5.1.9. Title to Purchased Vessel
|
34
|
SECTION 5.1.10. Interest Stabilisation
|
34
|
ARTICLE VI REPRESENTATIONS AND WARRANTIES
|
|
SECTION 6.1. Organization, etc.
|
36
|
SECTION 6.2. Due Authorization, Non-Contravention, etc.
|
36
|
SECTION 6.3. Government Approval, Regulation, etc.
|
36
|
SECTION 6.4. Compliance with Environmental Laws
|
36
|
SECTION 6.5. Validity, etc.
|
36
|
SECTION 6.6. No Default, Event of Default or Prepayment Event
|
37
|
SECTION 6.7. Litigation
|
37
|
SECTION 6.8. The Purchased Vessel
|
37
|
SECTION 6.9. Obligations rank pari passu; Liens
|
37
|
SECTION 6.10. Withholding, etc.
|
37
|
SECTION 6.11. No Filing, etc. Required
|
37
|
SECTION 6.12. No Immunity
|
38
|
SECTION 6.13. Investment Company Act
|
38
|
SECTION 6.14. Regulation U
|
38
|
SECTION 6.15. Accuracy of Information
|
38
|
SECTION 6.16. Compliance with Laws
|
38
|
ARTICLE VII COVENANTS
|
|
SECTION 7.1. Affirmative Covenants
|
39
|
SECTION 7.1.1. Financial Information, Reports, Notices, etc.
|
39
|
SECTION 7.1.2. Approvals and Other Consents
|
40
|
SECTION 7.1.3. Compliance with Laws, etc.
|
40
|
SECTION 7.1.4. The Purchased Vessel
|
41
|
SECTION 7.1.5. Insurance
|
41
|
SECTION 7.1.6. Books and Records
|
42
|
SECTION 7.1.7. Coface Insurance Policy/French Authority Requirements
|
42
|
SECTION 7.2. Negative Covenants
|
42
|
SECTION 7.2.1. Business Activities
|
42
|
SECTION 7.2.2. Indebtedness
|
42
|
SECTION 7.2.3. Liens
|
43
|
SECTION 7.2.4. Financial Condition
|
45
|
SECTION 7.2.5. Investments
|
45
|
SECTION 7.2.6. Consolidation, Merger, etc.
|
45
|
SECTION 7.2.7. Asset Dispositions, etc.
|
46
|
SECTION 7.3. Lender incorporated in the Federal Republic of Germany
|
46
|
ARTICLE VIII EVENTS OF DEFAULT
|
|
SECTION 8.1. Listing of Events of Default
|
47
|
SECTION 8.1.1. Non-Payment of Obligations
|
47
|
SECTION 8.1.2. Breach of Warranty
|
47
|
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations
|
47
|
SECTION 8.1.4. Default on Other Indebtedness
|
47
|
SECTION 8.1.5. Bankruptcy, Insolvency, etc.
|
48
|
SECTION 8.2. Action if Bankruptcy
|
48
|
SECTION 8.3. Action if Other Event of Default
|
49
|
ARTICLE IX PREPAYMENT EVENTS
|
|
SECTION 9.1. Listing of Prepayment Events
|
49
|
SECTION 9.1.1. Change of Control
|
49
|
SECTION 9.1.2. Unenforceability
|
49
|
SECTION 9.1.3. Approvals
|
49
|
SECTION 9.1.4. Non-Performance of Certain Covenants and Obligations
|
49
|
SECTION 9.1.5. Judgments
|
49
|
SECTION 9.1.6. Condemnation, etc.
|
50
|
SECTION 9.1.7. Arrest
|
50
|
SECTION 9.1.8. Sale/Disposal of the Purchased Vessel
|
50
|
SECTION 9.1.9. Coface Insurance Policy
|
50
|
SECTION 9.1.10. Illegality
|
50
|
SECTION 9.2. Mandatory Prepayment
|
50
|
SECTION 9.3. Mitigation
|
50
|
ARTICLE X THE FACILITY AGENT AND THE ECA AGENT
|
|
SECTION 10.1. Actions
|
51
|
SECTION 10.2. Indemnity
|
51
|
SECTION 10.3. Funding Reliance, etc.
|
52
|
SECTION 10.4. Exculpation
|
52
|
SECTION 10.5. Successor
|
53
|
SECTION 10.6. Loans by the Facility Agent
|
53
|
SECTION 10.7. Credit Decisions
|
53
|
SECTION 10.8. Copies, etc.
|
54
|
SECTION 10.9. The Agents’ Rights
|
54
|
SECTION 10.10. The Facility Agent’s Duties
|
54
|
SECTION 10.11. Employment of Agents
|
55
|
SECTION 10.12. Distribution of Payments
|
55
|
SECTION 10.13. Reimbursement
|
55
|
SECTION 10.14. Instructions
|
55
|
SECTION 10.15. Payments
|
56
|
SECTION 10.16. “Know your customer” Checks
|
56
|
SECTION 10.17. No Fiduciary Relationship
|
56
|
SECTION 10.18. Illegality
|
56
|
ARTICLE XI MISCELLANEOUS PROVISIONS
|
|
SECTION 11.1. Waivers, Amendments, etc.
|
56
|
SECTION 11.2. Notices
|
57
|
SECTION 11.3. Payment of Costs and Expenses
|
59
|
SECTION 11.4. Indemnification
|
59
|
SECTION 11.5. Survival
|
60
|
SECTION 11.6. Severability
|
61
|
SECTION 11.7. Headings
|
61
|
SECTION 11.8. Execution in Counterparts, Effectiveness, etc.
|
61
|
SECTION 11.9. Third Party Rights
|
61
|
SECTION 11.10. Successors and Assigns
|
61
|
SECTION 11.11. Sale and Transfer of the Loan; Participations in the Loan
|
61
|
SECTION 11.11.1. Assignments
|
62
|
SECTION 11.11.2. Participations
|
64
|
SECTION 11.11.3. Register
|
65
|
SECTION 11.11.4. Rights of Coface to payments
|
65
|
SECTION 11.12. Other Transactions
|
65
|
SECTION 11.13. Coface Insurance Policy
|
65
|
SECTION 11.13.1. Terms of Coface Insurance Policy
|
65
|
SECTION 11.13.2. Obligations of the Borrower
|
66
|
SECTION 11.13.3. Obligations of the ECA Agent and the Lenders
|
66
|
SECTION 11.14. Law and Jurisdiction
|
67
|
SECTION 11.14.1. Governing Law
|
67
|
SECTION 11.14.2. Jurisdiction
|
67
|
SECTION 11.14.3. Alternative Jurisdiction
|
67
|
SECTION 11.14.4. Service of Process
|
67
|
SECTION 11.15. Confidentiality
|
67
|
SECTION 11.16. French Authority Requirements
|
68
|
SECTION 11.17. Waiver of immunity
|
69
|
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 the Facility Agent and the Lenders
|
Exhibit B-3
|
-
|
Form of Opinion of French Counsel to the Facility Agent and the Lenders
|
Exhibit B-4
|
-
|
Form of Opinion of US Tax Counsel to the Lenders
|
Exhibit C
|
-
|
Form of Lender Assignment Agreement
|
Exhibit D
|
-
|
Form of Certificate of French Content
|
(A)
|
The Borrower and STX France S.A. (the “Builder”) have entered on 16 February 2015 into a Contract for the Construction and Sale of Hull No. K34 (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 K34 (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 the EUR sum of:
|
|
(i)
|
eighty per cent (80%) of the Contract Price (as defined below) of the Purchased Vessel, and including Non-Yard Costs of up to EUR 76,000,000 and the Other Basic Contract Price Increases (as defined below) for the Purchased Vessel, of up to EUR68,300,000, but which amount shall not exceed in aggregate EUR697,940,000;
|
|
(ii)
|
eighty per cent (80%) of the change orders of up to EUR 99,110,000 (representing up to 17% of the Basic Contract Price) effected in accordance with the Construction Contract; and
|
|
(iii)
|
100% of the Coface Premium (as defined below),
|
|
being an amount no greater than EUR652,624,540 and being made available in the US Dollar Equivalent of that Maximum Loan Amount (as such Dollar amount may be adjusted pursuant to clause 5.3 of the Novation Agreement);
|
(C)
|
Of the amounts referred to in recital (B)(i) and (ii) above, the Lenders have made certain amounts available to the Original Borrower during the period prior to the Actual Delivery Date pursuant to this Agreement (the liability for which amount has been assumed by the Borrower following the novation of this Agreement pursuant to the Novation Agreement) and, in relation to the amount referred to in recital (B)(i), the balance has been or shall be made available to
|
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 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 offered quotation appears on Thomson Reuters LIBOR01 Page (or any successor page) at the relevant time the LIBO Rate shall be the Historic Screen Rate or, if it is not possible to calculate an Historic Screen Rate, it 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;
|
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 that rate is less than zero, the LIBO Rate shall be deemed to be zero.
|
a)
|
Each Lender will make its portion of the Loan available to the Borrower in accordance with Section 2.3 on the Actual Delivery Date. 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 clause 10.2 of the Novation Agreement or reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.11.1. Notwithstanding the foregoing, each Lender’s Commitment shall terminate on the earlier of (i) the Commitment Termination Date if the Purchased Vessel is not delivered prior to such date and (ii) the Actual Delivery Date.
|
b)
|
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)
|
Part of the Loan in an amount equal to the Novated Loan Balance shall be assumed by the Borrower and be deemed to be advanced to, and borrowed by the Borrower, pursuant to the provisions of clause 3 of the Novation Agreement and thereafter converted into Dollars pursuant to clause 5.1 of the Novation Agreement.
|
b)
|
In relation to the amount of the Loan comprised by the Additional Advances, 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 prior to the anticipated Actual Delivery Date. The Additional Advances shall be drawn in Dollars.
|
c)
|
The Facility Agent shall promptly notify each Lender of the Loan Request in respect of the Additional Advances by forwarding a copy thereof to each Lender, together with its attachments. On the terms and subject to the conditions of this Agreement, the portion of the Loan in respect of the Additional Advances shall be made on the Actual Delivery Date. On or before 11:00 a.m., London time, on the Actual Delivery Date, the Lenders shall, without any set-off or counterclaim, deposit with the Facility Agent same day funds in an amount equal to such Lender’s Percentage of the requested portion of the Additional Advances in Dollars. Such deposits will be made to such 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 Actual Delivery Date by wire transfer of same day funds to the accounts the Borrower shall have specified in its Loan Request.
|
d)
|
If the Borrower elects to finance that part of the Coface Premium payable by the Borrower with an Additional Advance under clause 5.2(c)(i) of the Novation Agreement, the Borrower shall indicate such election in the Loan Request. The amount of the advance in Dollars (the “US Dollar Coface Advance Amount”) that will fund the Coface Premium shall be equal to the Dollar amount that corresponds to the EUR amount of the Coface Premium to be financed with such advance, which amount shall be determined by the Facility Agent based on the Spot Rate of Exchange. The Facility Agent shall notify the Borrower and the Lenders of the US Dollar Coface Advance Amount on the date such Loan Request is delivered, and the Lenders shall deposit such US Dollar Coface Advance Amount with the Facility Agent in accordance with Section 2.3.c). The Facility Agent shall furnish a certificate to the Borrower on the date such Loan Request is delivered setting forth such Spot Rate of Exchange, its derivation and the calculation of the US Dollar Coface Advance Amount. If the Borrower elects to so finance the Coface Premium, the Borrower will be deemed to have directed the Facility Agent to pay over directly to Coface on behalf of the Borrower that portion of the EUR amount of the Coface Premium to be financed with the proceeds of the advance on the Actual Delivery Date and to retain for its own account deposits made by the Lenders in Dollars in an amount equal to the portion of the US Dollar Coface Advance Amount attributable to the Coface Premium paid by the Facility Agent to Coface on behalf of the Borrower.
|
e)
|
If the Borrower elects to finance that part of the Coface Premium payable by the Borrower with an Additional Advance under clause 5.2(c)(ii) of the Novation Agreement, the Borrower shall indicate such election in the Loan Request (and whether it wishes to receive such amount in EUR or in Dollars). The amount of the advance in Dollars (the “US Dollar Coface Balance Amount”) that will fund the Coface Premium shall be equal to the Dollar amount that corresponds to the EUR amount of the Coface Premium to be financed with such advance, which amount shall be determined by the Facility Agent based on the Spot Rate of Exchange. The Facility
|
a)
|
The Borrower shall repay the Loan in 24 equal semi-annual installments, with the first installment to fall due on the date falling six (6) months after the Actual Delivery Date and the final installment to fall due on the date of Final Maturity.
|
b)
|
No such amounts 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 at least five (5) Business Days’ prior written notice to the Facility Agent; and
|
(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 installments, as the Borrower shall designate to the Facility Agent, in satisfaction of the remaining repayment installments of the Loan; and
|
ii)
|
shall, immediately upon any acceleration of the repayment of the installments 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 it becomes unlawful in any jurisdiction for any Lender to perform any of its obligations under the Loan Documents or to maintain or fund its portion of the Loan, the affected Lender may give written notice (the "Illegality Notice") to the Borrower and the Facility Agent of such event, including reasonable details of the relevant circumstances.
|
c)
|
If an affected Lender delivers an Illegality Notice, the Borrower, the Facility Agent and the affected Lender shall discuss in good faith (but without obligation) what steps may be open to the relevant Lender to mitigate or remove such circumstances but, if they are unable to agree such steps within 20 Business Days or if the Borrower so elects, the Borrower shall have the right, but not the obligation, exercisable at any time within 50 days after receipt of such Illegality Notice or, if earlier, the date upon which the unlawful event referred to in (b) above will apply (but not being a date falling earlier than the end of the 20 Business Day period referred to above) (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) acceptable to the Facility Agent (such consent not to be unreasonably withheld or delayed) and (II) where relevant, eligible to benefit from an Interest Stabilisation Agreement, pursuant to assignment(s) notified to and consented in writing by Coface and, where relevant Natixis DAI, 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 obliged to make any such assignment as a result of an election by the Borrower pursuant to this Section 3.2(c) 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).
|
a)
|
each Interest Payment Date;
|
b)
|
each Repayment Date;
|
c)
|
the date of any prepayment, in whole or in part, of principal outstanding on the Loan (but only on the principal so prepaid); and
|
d)
|
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.
|
|
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 Lenders that in the aggregate hold more than 50% of the aggregate outstanding principal amount of the Loan then held by Lenders 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 Lender may exercise its rights under this Section 4.2.c) for amounts up to the difference between such Lender’s cost of obtaining matching deposits on the date such 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 taxation on overall net income and, to the extent such taxes are described in Section 4.6, withholding taxes); 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,
|
i)
|
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 or (if the Floating Rate applies) any repayment or prepayment or
|
ii)
|
the relevant portion of 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 clause 6.1(c) of the Novation Agreement and Article V not being satisfied,
|
|
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 equal to the amount by which:
|
|
(i)
|
interest calculated at the Floating Rate (excluding the Floating Rate Margin) 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 amount notified to it following the calculation referred to in the next paragraph.
|
|
Since the Lenders commit themselves irrevocably to the French Authorities in charge of monitoring the CIRR mechanism, any prepayment (whether voluntary, involuntary or mandatory, including following the acceleration of the Loan) will be subject to the mandatory payment by the Borrower of the amount calculated in liaison with the French Authorities two (2) Business Days prior to the prepayment date by taking into account the differential (the “Rate Differential”) between the CIRR and the prevailing market yield (currently ISDAFIX) for each installment to be prepaid and applying such Rate Differential to the remaining residual period of such installment and discounting to the net present value as described below. Each of these Rate Differentials will be applied to the corresponding installment to be prepaid during the period starting on the date on which such prepayment is required to be made and ending on the original Repayment Date (as adjusted following any previous prepayments) for such installment and:
|
|
(A)
|
the net present value of each corresponding amount resulting from the above calculation will be determined at the corresponding market yield; and
|
|
(B)
|
if the cumulated amount of such present values is negative, no amount shall be due to the Borrower or from the Borrower.
|
|
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)
|
Unless otherwise expressly provided, all payments by the Borrower pursuant to this Agreement or any other Loan Document shall be made by the Borrower to the
|
|
Facility Agent for the pro rata account of the Lenders entitled to receive such payment. 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.
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|
b)
|
Each Lender hereby instructs the Facility Agent, with respect to any portion of the Loan held by such Lender, to pay directly to such Lender interest thereon at the Fixed Rate or (if the proviso to Section 5.1.10 applies) the Floating Rate, on the basis that (if the Fixed Rate applies) such Lender will, where amounts are payable to Natixis by that Lender under the Interest Stabilisation Agreement, account directly to Natixis for any such amounts payable by that Lender under the Interest Stabilisation Agreement to which such Lender is a party.
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|
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 be made on the next succeeding Business Day and such extension of time shall be included in computing interest and fees, if any, in connection with such payment.
|
|
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.
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|
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
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|
b)
|
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
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|
(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.
|
|
a)
|
Subject to paragraph c) below, each party (other than the Borrower) shall, within ten Business Days of a reasonable request by another party (other than the Borrower):
|
|
b)
|
If a party confirms to another party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that party shall notify that other party reasonably promptly.
|
|
c)
|
Paragraph a) above shall not oblige any Lender or the Facility Agent to do anything, and paragraph a)(iii) above shall not oblige any other party to do anything, which would or might in its reasonable opinion constitute a breach of:
|
|
d)
|
If a party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such party shall be treated for the purposes of the Loan Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the party in question provides the requested confirmation, forms, documentation or other information.
|
|
e)
|
Each party may make a FATCA Deduction from a payment under this Agreement that it is required to be made by FATCA, and any payment required in connection with that FATCA Deduction, and no party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
|
a)
|
the Facility Agent fails to respond to a request under Section 4.13 and a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party;
|
|
b)
|
the information supplied by the Facility Agent pursuant to Section 4.13 indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party; or
|
|
c)
|
the Facility Agent notifies the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party;
|
|
a)
|
a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorized to act with respect to this Agreement and each other Loan Document and as to the truth and completeness of the attached:
|
|
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 and, if the Coface Insurance Policy is to be re-issued or replaced on or about the Actual Delivery Date, Exhibit B-3 hereto; and
|
|
c)
|
Clifford Chance US LLP, United States tax counsel to the Facility Agent for the benefit of the Lenders, covering the matters set forth in Exhibit B-4 hereto,
|
|
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 invoice and supporting documents received by the Builder from the Borrower pursuant to Appendix C of the Construction Contract in relation to the Non-Yard Costs to be financed and a declaration from the Borrower and the Builder in substantially the form set forth in Exhibit D hereto that the requirement for a minimum 30% French content in respect of Non-Yard Costs and change orders in aggregate has been fulfilled;
|
|
b)
|
a copy of the final commercial invoice from the Builder showing the amount of the Contract Price (including the Non-Yard Costs and the Other Basic Contract Price Increases) and the portion thereof payable to the Builder on the Actual Delivery Date under the Construction Contract; and
|
|
c)
|
copies of the wire transfers for all payments by the Borrower to the Builder under the Construction Contract in respect of the Basic Contract Price to the extent not already provided as part of the drawdown conditions for drawdowns made by the Original Borrower.
|
|
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 as would not reasonably be expected to result in a Material Adverse Effect.
|
|
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)
|
The Obligations rank at least pari passu in right of payment and in all other respects with all other unsecured unsubordinated Indebtedness of the Borrower other than Indebtedness preferred as a matter of law.
|
|
b)
|
As at the date of this Agreement, the provisions of this Agreement which permit or restrict the granting of Liens are no less favorable than the provisions permitting or restricting the granting of Liens in any other agreement entered into by the Borrower with any other person providing financing or credit to the Borrower.
|
|
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)
|
as soon as the Borrower becomes aware thereof, notice of any event which, in its reasonable opinion, would be expected to materially adversely affect the business, operations or financial condition of the Borrower and its Subsidiaries taken as a whole;
|
|
g)
|
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
|
|
h)
|
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 (including an update to any information and projections previously provided to the Lenders where these have been prepared and are available);
|
|
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 and anti-corrupt practices 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 ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions.
|
|
a)
|
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)
|
cause the Purchased Vessel to be kept in such condition as will entitle her to classification by a classification society of recognized standing;
|
|
c)
|
provide the following to the Facility Agent with respect to the Purchased Vessel:
|
|
(i)
|
evidence as to the ownership of the Purchased Vessel by the Borrower or one of the Borrower’s wholly owned Subsidiaries; and
|
|
(ii)
|
evidence of no recorded Liens on the Purchased Vessel, other than Liens permitted pursuant to Section 7.2.3;
|
|
d)
|
within seven days after the Actual Delivery Date, provide the following to the Facility Agent with respect to the Purchased Vessel:
|
|
(i)
|
evidence of the class of the Purchased Vessel; and
|
|
(ii)
|
evidence as to all required insurance being in effect 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(b), 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)
|
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 (b), 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);
|
|
c)
|
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;
|
|
d)
|
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 becomes a Subsidiary of the Borrower and were not created by the Borrower or any of its Subsidiaries in anticipation thereof;
|
|
e)
|
Liens securing Government-related Obligations;
|
|
f)
|
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;
|
|
g)
|
Liens of carriers, warehousemen, mechanics, material-men and landlords incurred in the ordinary course of business for sums not overdue or being diligently contested in good faith by appropriate proceedings;
|
|
h)
|
Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits;
|
|
i)
|
Liens for current crew’s wages and salvage;
|
|
j)
|
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;
|
|
k)
|
Liens on Vessels that:
|
|
l)
|
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 favor of banks or other depository institutions;
|
|
m)
|
Liens in respect of rights of set-off, recoupment and holdback in favor of credit card processors securing obligations in connection with credit card processing services incurred in the ordinary course of business; and
|
|
n)
|
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 Capitalization 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 Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
|
|
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 authorizes 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, reorganization, 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 authorizes 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 authorizing, 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)
|
contravene or be in breach of the terms of the COFACE Insurance Policy or the arrangements with Natixis DAI relating to the CIRR (if the Fixed Rate applies) shall be effective unless consented to by, as applicable, COFACE and/or Natixis DAI;
|
|
b)
|
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;
|
|
c)
|
modify this Section 11.1 or change the definition of “Required Lenders” shall be made without the consent of each Lender;
|
|
d)
|
increase the Commitment of any Lender shall be made without the consent of such Lender;
|
|
e)
|
reduce any fees described in Article III payable to any Lender shall be made without the consent of such Lender;
|
|
f)
|
extend the Commitment Termination Date of any Lender shall be made without the consent of such Lender;
|
|
g)
|
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
|
|
h)
|
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
|
|
b)
|
So long as Citibank Europe plc, UK Branch 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 to such email address notified by the Facility Agent to the Borrower; provided that any Communication requested pursuant to Section 7.1.1(h) shall be in a format acceptable to the Borrower and the Facility Agent.
|
|
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 Authorization System and the Platform is secured through a single user per deal authorization 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
|
|
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, each Lender and Coface; 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 any other agreements required by the Facility Agent or, if the Fixed Rate applies, Natixis 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.
|
|
a)
|
The Coface Insurance Policy will cover 100% of the Loan.
|
|
b)
|
The Coface Premium will equal 2.35% of the aggregate principal amount of the Loan as at the Actual Delivery Date.
|
|
c)
|
If, after the Actual Delivery Date, the Borrower prepays all or part of the Loan in accordance with this Agreement, Coface shall reimburse to the ECA Agent for the account of the Borrower an amount equal to 80% of all or a corresponding proportion of the unexpired portion of the Coface Premium, having regard to the amount of the prepayment and the remaining term of the Loan, such amount to be calculated in accordance with the following formula:
|
|
a)
|
Promptly upon receipt of the Coface Insurance Policy from Coface, the ECA Agent shall (subject to any confidentiality undertakings given to Coface by the ECA Agent pursuant to the terms of the Coface Insurance Policy) send a copy thereof to the Borrower.
|
|
b)
|
The ECA 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 Coface under the Coface Insurance Policy as necessary to ensure that the Lenders obtain the support of Coface pursuant to the Coface Insurance Policy.
|
|
c)
|
Each Lender will co-operate with the ECA 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 Coface Insurance Policy and each Interest Stabilisation Agreement continues in full force and effect and shall indemnify and hold harmless each other Lender in the event that the Coface Insurance Policy or such Interest Stabilisation Agreement (as the case may be) does not continue in full force and effect due to its gross negligence or willful default or due to a voluntary change in status which results in it no longer being eligible for CIRR interest stabilisation.
|
|
e)
|
The ECA Agent shall:
|
|
a)
|
the Republic of France and any French Authority 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 Republic of France and any French Authority with information concerning the transactions to be handled by it under this Agreement; and
|
|
(ii)
|
disclose information concerning the subsidized 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.
|
ROYAL CARIBBEAN CRUISES LTD.
|
|||
By _____________________________
|
|||
Name:
|
|||
Title:
|
|||
Address:
|
1050 Caribbean Way
|
||
Miami, Florida 33132
|
|||
Facsimile No.:
|
(305) 539-0562
|
||
Email:
|
agibson@rccl.com
|
||
bstein@rccl.com
|
|||
Attention:
|
Vice President, Treasurer
|
||
With a copy to:
|
General Counsel
|
||
SUMITOMO MITSUI BANKING
CORPORATION EUROPE LIMITED, PARIS
BRANCH as ECA Agent and a Lender
|
||||
Commitment
|
||||
17% of the Maximum
|
By ___________________________________
|
|||
Loan Amount
|
Name:
|
|||
Title:
|
||||
1/3/5 rue Paul Cézanne
|
||||
75008 Paris
|
||||
France
|
||||
Attention: Cedric Le Duigou
|
||||
Guillaume Branco
|
||||
Cam Truong
|
||||
Claire Lucien
|
||||
Fax No: +33 1 44 90 48 01
|
||||
Tel No:
|
||||
Cedric Le Duigou:
|
+33 1 44 90 48 83
|
|||
Guillaume Branco:
|
+33 1 44 90 48 71
|
|||
Cam Truong:
|
+33 1 44 90 48 51
|
|||
Claire Lucien
|
+33 1 44 90 48 49
|
|||
E-mail :
|
||||
cedric_leduigou@fr.smbcgroup.com
|
||||
guillaume_branco@fr.smbcgroup.com
|
||||
cam_truong@fr.smbcgroup.com
|
||||
claire_lucien@fr.smbcgroup.com
|
||||
FRPAGTFD@fr.smbcgroup.com
|
CITIBANK N.A., LONDON BRANCH as
Global Coordinator and a Lender
|
|||||
Commitment
|
|||||
21% of the Maximum
|
By ___________________________________
|
||||
Loan Amount
|
Name:
|
||||
Title:
|
|||||
Citigroup Centre
|
|||||
Canada Square
|
|||||
London E14 5LB
|
|||||
United Kingdom
|
|||||
Attention:
|
Konstantinos Frangos
|
||||
Francois Turpault
|
|||||
Kara Catt
|
|||||
Romina Coates
|
|||||
Fax No:
|
+44 20 7986 4881
|
||||
Tel No:
|
+44 20 7986 3035 /
|
||||
+44 20 7508 0344
|
|||||
+44 20 7986 4824
|
|||||
+44 20 7986 5017
|
|||||
E-mail :
|
|||||
konstantinos.frangos@citi.com
|
|||||
francois.turpault@citi.com
|
|||||
kara.catt@citi.com
|
|||||
romina.coates@citi.com
|
BANCO BILBAO VIZCAYA ARGENTARIA,
PARIS BRANCH as Lender
|
|||||
Commitment
|
|||||
3% of the Maximum
|
By ___________________________________
|
||||
Loan Amount
|
Name:
|
||||
Title:
|
|||||
29 avenue de l'Opéra
|
|||||
75001 Paris
|
|||||
France
|
|||||
Attention:
|
David Peyroux
|
||||
Laura Luca de Tena
|
|||||
Maria Merodio
|
|||||
Fax No:
|
+33 1 44 86 84 45
|
||||
Tel No:
|
+33 1 44 86 83 98 /
|
||||
+33 1 44 86 83 21 /
|
|||||
+33 1 44 86 84 45
|
|||||
E-mail :
|
david.peyroux@bbva.com /
|
||||
laura.luca@bbva.com /
|
|||||
asuncion.merodio@bbva.com
|
BANCO SANTANDER, S.A. PARIS BRANCH
as Lender
|
|||||
Commitment
|
|||||
15% of the Maximum
|
By ___________________________________
|
||||
Loan Amount
|
Name:
|
||||
Title:
|
|||||
Lending Office:
|
|||||
40 rue de Courcelles
|
|||||
75008 Paris
|
|||||
France
|
|||||
Operational address:
|
|||||
Ciudad Financiera
|
|||||
Avenida de Cantabria s/n
|
|||||
Edificio Encinar 2a planta
|
|||||
28600 Boadilla del Monte
|
|||||
Spain
|
|||||
Attention:
|
Elise Regnault
|
||||
Matias Herkommer
|
|||||
Vanessa Berrio
|
|||||
Jose Luis Diaz Cassou
|
|||||
Caroline Pereira Pantaleao
|
|||||
Fax No:
|
+34 91 257 1682
|
||||
Tel No:
|
+34 912893722 /
|
||||
+34 912891127
|
|||||
+34 912891028
|
|||||
+34 91 289 1370
|
|||||
+33 1 53 53 70 35
|
|||||
E-mail :
|
|||||
elise.regnault@gruposantander.com
|
|||||
mherkommer@gruposantander.com
|
|||||
vaberrio@gruposantander.com
|
|||||
joldiaz@gruposantander.com
|
|||||
cpantaleao@gruposantander.com
|
HSBC FRANCE as Lender
|
|||||
Commitment
|
|||||
21% of the Maximum
|
By ___________________________________
|
||||
Loan Amount
|
Name:
|
||||
Title:
|
|||||
HSBC France – Global Banking Agency
Operations (GBAO) Transaction
Manager Unit
|
|||||
103 avenue des Champs Elysées
|
|||||
75008 Paris
|
|||||
France
|
|||||
Attention:
|
Fatma Bao
|
||||
Elie Eh El Hayek
|
|||||
Fax No:
|
+ 33 1 40 70 28 80
|
||||
Tel No:
|
+ 33 1 40 70 79 15 /
|
||||
+ 33 1 57 57 01 58
|
|||||
E-mail :
|
|||||
fatma.bao@hsbc.fr
|
|||||
elie.eh.el.hayek@hsbc.fr
|
|||||
Copy to:
|
|||||
HSBC France
|
|||||
103 avenue des Champs Elysées
|
|||||
75008 Paris
|
|||||
France
|
|||||
Attention:
|
Julie Bellais
|
||||
Gilles Pinot de Villechenon
|
|||||
Fax No:
|
+ 33 1 40 70 78 93
|
||||
Tel No:
|
+ 33 1 40 70 28 59 /
|
||||
+ 33 1 40 70 35 07
|
|||||
E-mail :
|
|||||
julie.bellais@hsbc.fr
|
|||||
gilles.pinot.de.villechenon@hsbc.fr
|
SOCIÉTÉ GÉNÉRALE as Lender
|
|||||
Commitment
|
|||||
23% of the Maximum
|
By ___________________________________
|
||||
Loan Amount
|
Name:
|
||||
Title:
|
|||||
Lending Office:
|
|||||
29 Boulevard Haussmann
|
|||||
75009 Paris
|
|||||
France
|
|||||
Address for Operational / Servicing
matters:
|
|||||
Attention: Bouchra BOUMEZOUED /
|
|||||
Aramata COULIBALY
|
|||||
Société Générale
|
|||||
189, rue d’Aubervilliers
|
|||||
75886 PARIS CEDEX 18
|
|||||
France
|
|||||
Tel No:
|
+33 1 57 29 13 12
|
||||
+33 1 57 29 03 30
|
|||||
Fax No
|
+33 1 46 92 45 98
|
||||
Email:
|
par-oper-caf-
|
||||
dmt6@sgcib.com
|
|||||
For Credit matters:
|
|||||
OPER/FIN/SMO/EXT
|
|||||
Attention: Sebastien LEOCADIE /
Olivier GUEGUEN
|
|||||
Tel No:
|
+33 1 58 98 29 85
|
||||
+33 1 42 13 07 52
|
|||||
Fax No
|
+33 1 46 92 45 97
|
||||
Email:
|
|||||
sebastien.leocadie@sgcib.com
|
|||||
olivier.gueguen@sgcib.com
|
|||||
par-oper-fin-smo-ext@sgcib.com
|
CITIBANK EUROPE PLC, UK BRANCH
as Facility Agent
|
|||||
By ___________________________________
|
|||||
Name:
|
|||||
Title:
|
|||||
5th Floor Citigroup Centre
|
|||||
Mail drop CGC2 05-65
|
|||||
25 Canada Square Canary Wharf
|
|||||
London E14 5LB
|
|||||
U.K.
|
|||||
Fax No
|
+44 20 7492 3980
|
||||
Attention:
|
EMEA Loans Agency
|
||||
Existing Borrower
|
||
SIGNED by Dina Anastas
for and on behalf of
AZAIREMIA FINANCE LIMITED)
|
)
)
)
|
/s/ Dina Anastas
Attorney-in-Fact
|
New Borrower
|
||
SIGNED by Marzena Legezynska
for and on behalf of
ROYAL CARIBBEAN CRUISES LTD.
|
)
)
)
)
|
/s/ Marzena Legezynska
Attorney-in-Fact
|
Facility Agent
|
||
SIGNED by Simon Hartley
for and on behalf of
CITIBANK EUROPE PLC, UK BRANCH
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
Security Trustee
|
||
SIGNED by Simon Hartley
for and on behalf of
CITICORP TRUSTEE COMPANY LIMITED
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
Global Coordinator
|
||
SIGNED by Alex Taylor
for and on behalf of
CITIBANK N.A., LONDON BRANCH
|
)
)
)
)
|
/s/ Alex Taylor
Attorney in-fact
|
The ECA Agent
|
||
SIGNED by Simon Hartley
for and on behalf of
SUMITOMO MITSUI BANKING CORPORATION
EUROPE LIMITED, PARIS BRANCH
|
)
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
French Coordinating Bank
|
||
SIGNED by Simon Hartley
for and on behalf of
HSBC FRANCE
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
The Original Lenders
|
||
SIGNED by Simon Hartley
for and on behalf of
BANCO BILBAO VIZCAYA ARGENTARIA, PARIS BRANCH
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
SIGNED by Simon Hartley
for and on behalf of
BANCO SANTANDER, S.A. PARIS BRANCH
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
SIGNED by Alex Taylor
for and on behalf of
CITIBANK N.A., LONDON BRANCH
|
)
)
)
)
|
/s/ Alex Taylor
Attorney in-fact
|
SIGNED by Simon Hartley
for and on behalf of
HSBC FRANCE
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
SIGNED by Simon Hartley
for and on behalf of
SOCIÉTÉ GÉNÉRALE
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
SIGNED by Simon Hartley
for and on behalf of
SUMITOMO MITSUI BANKING CORPORATION EUROPE
LIMITED, PARIS BRANCH
|
)
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
The Mandated Lead Arrangers
|
||
SIGNED by Simon Hartley
for and on behalf of
BANCO BILBAO VIZCAYA ARGENTARIA, PARIS BRANCH
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
SIGNED by Simon Hartley
for and on behalf of
BANCO SANTANDER, S.A. PARIS BRANCH
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
SIGNED by Alex Taylor
for and on behalf of
CITIBANK N.A., LONDON BRANCH
|
)
)
)
)
|
/s/ Alex Taylor
Attorney in-fact
|
SIGNED by Simon Hartley
for and on behalf of
HSBC FRANCE
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
SIGNED by Simon Hartley
for and on behalf of
SOCIÉTÉ GÉNÉRALE
|
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|
SIGNED by Simon Hartley
for and on behalf of
SUMITOMO MITSUI BANKING CORPORATION EUROPE
LIMITED, PARIS BRANCH
|
)
)
)
)
)
|
/s/ Simon Hartley
Attorney in-fact
|