(Mark One) | |
x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Republic of Liberia (State or other jurisdiction of incorporation or organization) | 98-0081645 (I.R.S. Employer Identification No.) |
Title of each class | Name of each exchange on which registered | |
Common Stock, par value $.01 per share | New York Stock Exchange |
Large accelerated filer x | Accelerated filer o | Non-accelerated filer o | Smaller reporting company o | |||
Emerging growth company o |
Page | ||||
Year | North America(1)(2) | Europe(1)(3) | Asia/Pacific(1)(4) | |||
2014 | 3.46% | 1.23% | 0.06% | |||
2015 | 3.36% | 1.25% | 0.08% | |||
2016 | 3.43% | 1.23% | 0.11% | |||
2017 | 3.56% | 1.28% | 0.15% | |||
2018 | 3.59% | 1.31% | 0.19% |
(1) | Source: Our estimates are based on a combination of data obtained from publicly available sources including the International Monetary Fund, United Nations, Department of Economic and Social Affairs, Cruise Lines International Association ("CLIA") and G.P. Wild. In addition, our estimates incorporate our own analysis utilizing the same publicly available cruise industry data as a base. |
(2) | Our estimates include the United States and Canada. |
(3) | Our estimates include European countries relevant to the industry (most notably: the Nordics, Germany, France, Italy, Spain and the United Kingdom). |
(4) | Our estimates include the Southeast Asia (most notably: Singapore, Thailand and the Philippines), East Asia (most notably: China and Japan), South Asia (most notably: India and Pakistan) and Oceania (most notably: Australia and Fiji Islands) regions. |
Year | Weighted-Average Supply of Berths Marketed Globally(1) | Royal Caribbean Cruises Ltd. Total Berths(2) | Global Cruise Guests(1) | North American Cruise Guests(1)(3) | European Cruise Guests(1)(4) | Asia/Pacific Cruise Guests(1)(5) | ||||||
2014 | 448,000 | 105,750 | 22,039 | 12,269 | 6,387 | 2,382 | ||||||
2015 | 469,000 | 112,700 | 23,000 | 12,004 | 6,587 | 3,129 | ||||||
2016 | 493,000 | 123,270 | 24,000 | 12,274 | 6,512 | 4,466 | ||||||
2017 | 515,000 | 124,070 | 26,700 | 12,865 | 6,779 | 5,415 | ||||||
2018 | 546,000 | 135,520 | 28,000 | 13,054 | 6,986 | 7,006 |
(1) | Source: Our estimates of the number of global cruise guests and the weighted-average supply of berths marketed globally are based on a combination of data that we obtain from various publicly available cruise industry trade information sources. We use data obtained from Seatrade Insider, Cruise Industry News and company press releases to estimate weighted-average supply of berths and CLIA and G.P. Wild to estimate cruise guest information. In addition, our estimates incorporate our own analysis utilizing the same publicly available cruise industry data as a base. |
(2) | Total berths include our berths related to our Global Brands and Partner Brands. |
(3) | Our estimates include the United States and Canada. |
(4) | Our estimates include European countries relevant to the industry (most notably: the Nordics, Germany, France, Italy, Spain and the United Kingdom). |
(5) | Our estimates include the Southeast Asia (most notably: Singapore, Thailand and the Philippines), East Asia (most notably: China and Japan), South Asia (most notably: India and Pakistan) and Oceania (most notably: Australia and Fiji Islands) regions. |
• | protect the health, safety and security of our guests and employees, |
• | protect the environment in which our vessels and organization operate, |
• | strengthen and support our human capital in order to better serve our global guest base and grow our business, |
• | strengthen our consumer engagement in order to enhance our revenues, |
• | increase the awareness and market penetration of our brands globally, |
• | focus on cost efficiency, manage our operating expenditures and ensure adequate cash and liquidity, with the overall goal of maximizing our return on invested capital and long-term shareholder value, |
• | strategically invest in our fleet through the upgrade and maintenance of existing ships and the transfer of key innovations, while prudently expanding our fleet with new state-of-the-art cruise ships, |
• | capitalize on the portability and flexibility of our ships by deploying them into those markets and itineraries that provide opportunities to optimize returns, while continuing our focus on existing key markets, |
• | further enhance our technological capabilities to service customer preferences and expectations in an innovative manner, while supporting our strategic focus on profitability, and |
• | maintain strong relationships with travel agencies, which continue to be the principal industry distribution channel, while enhancing our consumer outreach programs. |
Ship | Year Ship Built | Year Ship Entered/Will Enter Service(1) | Approximate Berths | Primary Areas of Operation | ||||
Royal Caribbean International | ||||||||
Spectrum of the Seas | 2019 | 2019 | 4,250 | Eastern Asia | ||||
Symphony of the Seas | 2018 | 2018 | 5,500 | Eastern/Western Caribbean | ||||
Harmony of the Seas | 2016 | 2016 | 5,450 | Eastern/Western Caribbean | ||||
Ovation of the Seas | 2016 | 2016 | 4,100 | Australia, Alaska | ||||
Anthem of the Seas | 2015 | 2015 | 4,150 | Southern Caribbean, Bahamas, Bermuda, Canada | ||||
Quantum of the Seas | 2014 | 2014 | 4,150 | Eastern Asia | ||||
Allure of the Seas | 2010 | 2010 | 5,450 | Eastern/Western Caribbean | ||||
Oasis of the Seas | 2009 | 2009 | 5,450 | Eastern/Western Caribbean, Europe | ||||
Independence of the Seas | 2008 | 2008 | 3,850 | Western Caribbean, Europe | ||||
Liberty of the Seas | 2007 | 2007 | 3,750 | Western Caribbean | ||||
Freedom of the Seas | 2006 | 2006 | 3,750 | Southern Caribbean | ||||
Jewel of the Seas | 2004 | 2004 | 2,150 | Western/Southern Caribbean, Europe, Middle East | ||||
Mariner of the Seas | 2003 | 2003 | 3,300 | Bahamas | ||||
Serenade of the Seas | 2003 | 2003 | 2,100 | Eastern/Southern Caribbean, Bermuda, Canada | ||||
Navigator of the Seas | 2002 | 2002 | 3,250 | Western/Southern Caribbean, Bahamas | ||||
Brilliance of the Seas | 2002 | 2002 | 2,100 | Western Caribbean, Europe | ||||
Adventure of the Seas | 2001 | 2001 | 3,300 | Eastern/Western Caribbean, Bahamas, Canada | ||||
Radiance of the Seas | 2001 | 2001 | 2,100 | Australia, Alaska | ||||
Explorer of the Seas | 2000 | 2000 | 3,250 | Australia, Europe, Western/Southern Caribbean | ||||
Voyager of the Seas | 1999 | 1999 | 3,250 | Eastern Asia, Australia | ||||
Vision of the Seas | 1998 | 1998 | 2,000 | Western/Southern Caribbean, Europe | ||||
Enchantment of the Seas | 1997 | 1997 | 2,250 | Western Caribbean | ||||
Rhapsody of the Seas | 1997 | 1997 | 2,000 | Western Caribbean, Europe | ||||
Grandeur of the Seas | 1996 | 1996 | 1,950 | Bahamas, Southern Caribbean, Bermuda, Canada | ||||
Majesty of the Seas | 1992 | 1992 | 2,350 | Western Caribbean, Cuba | ||||
Empress of the Seas | 1990 | 2016 | 1,550 | Cuba | ||||
Celebrity Cruises | ||||||||
Celebrity Flora | 2019 | 2019 | 100 | Galapagos Islands | ||||
Celebrity Edge | 2018 | 2018 | 2,900 | Eastern/Western Caribbean, Europe | ||||
Celebrity Reflection | 2012 | 2012 | 3,000 | Southern Caribbean, Europe |
Ship | Year Ship Built | Year Ship Entered/Will Enter Service(1) | Approximate Berths | Primary Areas of Operation | ||||
Celebrity Silhouette | 2011 | 2011 | 2,850 | Southern Caribbean, Europe | ||||
Celebrity Eclipse | 2010 | 2010 | 2,850 | South America, Alaska | ||||
Celebrity Equinox | 2009 | 2009 | 2,850 | Eastern/Western Caribbean | ||||
Celebrity Solstice | 2008 | 2008 | 2,850 | Australia, Alaska | ||||
Celebrity Xploration | 2007 | 2016 | 20 | Galapagos Islands | ||||
Celebrity Constellation | 2002 | 2002 | 2,150 | Middle East, India, Europe | ||||
Celebrity Summit | 2001 | 2001 | 2,150 | Southern Caribbean, Bermuda, Canada | ||||
Celebrity Infinity | 2001 | 2001 | 2,150 | Western Caribbean, Bahamas, Europe | ||||
Celebrity Xpedition | 2001 | 2004 | 100 | Galapagos Islands | ||||
Celebrity Millennium | 2000 | 2000 | 2,150 | Eastern Asia, Alaska | ||||
Celebrity Xperience | 1982 | 2016 | 50 | Galapagos Islands | ||||
Azamara Club Cruises | ||||||||
Azamara Pursuit | 2001 | 2018 | 700 | South America, Europe | ||||
Azamara Quest | 2000 | 2007 | 700 | Australia, Asia, Alaska | ||||
Azamara Journey | 2000 | 2007 | 700 | Cuba, Europe | ||||
Silversea Cruises | ||||||||
Muse | 2017 | 2017 | 550 | Australia, Asia, Alaska | ||||
Spirit | 2009 | 2009 | 600 | Southern Caribbean, Europe, Asia | ||||
Whisper | 2001 | 2001 | 350 | Southern Caribbean, Europe | ||||
Shadow | 2000 | 2000 | 350 | Asia, Europe, Southern Caribbean | ||||
Wind | 1995 | 1995 | 250 | Southern Caribbean, Europe, Canada | ||||
Cloud | 1994 | 1994 | 250 | South America, Europe | ||||
Galapagos | 1990 | 2013 | 100 | Galapagos Islands | ||||
Discoverer | 1989 | 2014 | 100 | Africa, Australia, Asia | ||||
Explorer | 1989 | 2008 | 100 | South America, Europe | ||||
Pullmantur | ||||||||
Zenith | 1992 | 2014 | 1,400 | Europe | ||||
Monarch | 1991 | 2013 | 2,350 | Southern Caribbean | ||||
Horizon | 1990 | 2010 | 1,400 | Middle East, Europe | ||||
Sovereign | 1988 | 2008 | 2,300 | South America, Europe | ||||
TUI Cruises | ||||||||
Mein Schiff 2 (2) | 2019 | 2019 | 2,850 | Europe, Southern Caribbean | ||||
Mein Schiff 1 (3) | 2018 | 2018 | 2,850 | Europe, Canada, Western Caribbean | ||||
Mein Schiff 6 | 2017 | 2017 | 2,500 | Western Caribbean, Europe, Asia | ||||
Mein Schiff 5 | 2016 | 2016 | 2,500 | Southern Caribbean, Europe, Middle East | ||||
Mein Schiff 4 | 2015 | 2015 | 2,500 | Middle East, Europe | ||||
Mein Schiff 3 | 2014 | 2014 | 2,500 | Asia, Europe | ||||
Mein Schiff Herz | 1997 | 2011 | 1,900 | Europe | ||||
Total | 142,720 |
(1) | The year a ship entered service refers to the year in which the ship commenced or is expected to commence cruise revenue operations for the brand. |
(2) | TUI Cruises' newbuild entered service as Mein Schiff 2 in February 2019 and the existing Mein Schiff 2 was renamed Mein Schiff Herz. |
(3) | TUI Cruises' newbuild entered service as Mein Schiff 1 and the existing Mein Schiff 1, not included above, was transferred to an affiliate of TUI AG, our joint venture partner in TUI Cruises. |
Ship | Expected to Enter Service | Approximate Berths | ||
Royal Caribbean International — | ||||
Oasis-class: | ||||
Unnamed | 2nd Quarter 2021 | 5,500 | ||
Quantum-class: | ||||
Spectrum of the Seas | 2nd Quarter 2019 | 4,250 | ||
Odyssey of the Seas | 4th Quarter 2020 | 4,250 | ||
Icon-class: | ||||
Unnamed | 2nd Quarter 2022 | 5,650 | ||
Unnamed | 2nd Quarter 2024 | 5,650 | ||
Celebrity Cruises — | ||||
Edge-class: | ||||
Celebrity Apex | 2nd Quarter 2020 | 2,900 | ||
Unnamed | 4th Quarter 2021 | 3,200 | ||
Unnamed | 4th Quarter 2022 | 3,200 | ||
Celebrity Flora | 2nd Quarter 2019 | 100 | ||
Silversea Cruises — | ||||
Silver Origin | 1st Quarter 2020 | 100 | ||
Silver Moon | 3rd Quarter 2020 | 550 | ||
Silver Dawn | 3rd Quarter 2021 | 550 | ||
TUI Cruises (50% joint venture)— | ||||
Mein Schiff 2 (1) | 1st Quarter 2019 | 2,850 | ||
Mein Schiff 7 | 2nd Quarter 2023 | 2,850 | ||
Unnamed | 3rd Quarter 2024 | 4,100 | ||
Unnamed | 1st Quarter 2026 | 4,100 | ||
Total Berths | 49,800 |
(1) | TUI Cruises' newbuild entered service as Mein Schiff 2 in February 2019. |
Year Ended December 31, | |||||||||
2018 (1) | 2017 | 2016 (2) | 2015 | 2014 | |||||
Passengers Carried | 6,084,201 | 5,768,496 | 5,754,747 | 5,401,899 | 5,149,952 | ||||
Passenger Cruise Days | 41,853,052 | 40,033,527 | 40,250,557 | 38,523,060 | 36,710,966 | ||||
Available Passenger Cruise Days (APCD) | 38,425,304 | 36,930,939 | 37,844,644 | 36,646,639 | 34,773,915 | ||||
Occupancy | 108.9% | 108.4% | 106.4% | 105.1% | 105.6% |
(1) | These amounts include only August and September 2018 amounts for Silversea Cruises due to the three-month reporting lag. Refer to Note 1. General and Note 3. Business Combination to our consolidated financial statements under Item 8. Financial Statements and Supplementary Data for more information on the three-month reporting lag and the Silversea Cruises acquisition. |
(2) | These amounts do not include November and December 2015 amounts for Pullmantur as the net Pullmantur result for those months was included within Other expense in our consolidated statements of comprehensive income (loss) for the year ended December 31, 2016, as a result of the elimination of the Pullmantur two-month reporting lag, and did not affect Gross Yields, Net Yields, Gross Cruise Costs, Net Cruise Costs and Net Cruise Costs Excluding Fuel. Additionally, effective August 2016, we no longer include Pullmantur in these amounts. |
Name | Age | Position | |
Richard D. Fain | 71 | Chairman, Chief Executive Officer and Director | |
Jason T. Liberty | 43 | Executive Vice President, Chief Financial Officer | |
Michael W. Bayley | 60 | President and Chief Executive Officer, Royal Caribbean International | |
Lisa Lutoff-Perlo | 61 | President and Chief Executive Officer, Celebrity Cruises | |
Lawrence Pimentel | 67 | President and Chief Executive Officer, Azamara Club Cruises | |
Harri U. Kulovaara | 66 | Executive Vice President, Maritime | |
Bradley H. Stein | 63 | Senior Vice President, General Counsel, Chief Compliance Officer | |
Henry L. Pujol | 51 | Senior Vice President, Chief Accounting Officer |
12/13 | 12/14 | 12/15 | 12/16 | 12/17 | 12/18 | ||||||
Royal Caribbean Cruises Ltd. | 100.00 | 176.94 | 220.72 | 182.99 | 271.25 | 227.46 | |||||
S&P 500 | 100.00 | 113.69 | 115.26 | 129.05 | 157.22 | 150.33 | |||||
Dow Jones U.S. Travel & Leisure | 100.00 | 116.37 | 123.23 | 132.56 | 164.13 | 154.95 |
Year Ended December 31, | |||||||||||||||||||
2018 (1) | 2017 | 2016 | 2015 | 2014 | |||||||||||||||
(in thousands, except per share data) | |||||||||||||||||||
Operating Data: | |||||||||||||||||||
Total revenues | $ | 9,493,849 | $ | 8,777,845 | $ | 8,496,401 | $ | 8,299,074 | $ | 8,073,855 | |||||||||
Operating Income | $ | 1,894,801 | $ | 1,744,056 | $ | 1,477,205 | $ | 874,902 | $ | 941,859 | |||||||||
Net Income | $ | 1,815,792 | $ | 1,625,133 | $ | 1,283,388 | $ | 665,783 | $ | 764,146 | |||||||||
Net Income attributable to Royal Caribbean Cruises Ltd. | $ | 1,811,042 | $ | 1,625,133 | $ | 1,283,388 | $ | 665,783 | $ | 764,146 | |||||||||
Adjusted Net Income attributable to Royal Caribbean Ltd.(2) (3) (4) (5) | $ | 1,873,363 | $ | 1,625,133 | $ | 1,314,689 | $ | 1,065,066 | $ | 755,729 | |||||||||
Per Share Data—Basic: | |||||||||||||||||||
Net Income attributable to Royal Caribbean Cruises Ltd. | $ | 8.60 | $ | 7.57 | $ | 5.96 | $ | 3.03 | $ | 3.45 | |||||||||
Adjusted Net Income attributable to Royal Caribbean Cruises Ltd. | $ | 8.90 | $ | 7.57 | $ | 6.10 | $ | 4.85 | $ | 3.41 | |||||||||
Weighted-average shares | 210,570 | 214,617 | 215,393 | 219,537 | 221,658 | ||||||||||||||
Per Share Data—Diluted: | |||||||||||||||||||
Net Income attributable to Royal Caribbean Cruises Ltd. | $ | 8.56 | $ | 7.53 | $ | 5.93 | $ | 3.02 | $ | 3.43 | |||||||||
Adjusted Net Income attributable to Royal Caribbean Cruises Ltd. | $ | 8.86 | $ | 7.53 | $ | 6.08 | $ | 4.83 | $ | 3.39 | |||||||||
Weighted-average shares and potentially dilutive shares | 211,554 | 215,694 | 216,316 | 220,689 | 223,044 | ||||||||||||||
Dividends declared per common share | $ | 2.60 | $ | 2.16 | $ | 1.71 | $ | 1.35 | $ | 1.10 | |||||||||
Balance Sheet Data: | |||||||||||||||||||
Total assets (6) | $ | 27,698,270 | $ | 22,360,926 | $ | 22,310,324 | $ | 20,782,043 | $ | 20,524,060 | |||||||||
Total debt, including commercial paper and capital leases | $ | 10,777,699 | $ | 7,539,451 | $ | 9,387,436 | $ | 8,527,243 | $ | 8,254,818 | |||||||||
Common stock | $ | 2,358 | $ | 2,352 | $ | 2,346 | $ | 2,339 | $ | 2,331 | |||||||||
Total shareholders' equity | $ | 11,105,461 | $ | 10,702,303 | $ | 9,121,412 | $ | 8,063,039 | $ | 8,284,359 |
(1) | On July 31, 2018, we acquired a 66.7% equity stake in Silversea Cruise Holding Ltd ("Silversea Cruises"). Refer to Note 3. Business Combination to our consolidated financial statements under Item 8. Financial Statements and Supplementary Data for information on the Silversea Cruises acquisition. |
(2) | For 2018, 2017 and 2016, refer to Financial Presentation and Results of Operations under Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations for the definition of Adjusted Net Income and a reconciliation of Adjusted Net Income to Net income. |
(3) | Amount for 2017 includes a gain of $30.9 million related to the sale of Legend of the Seas. |
(4) | Amount for 2015 excludes the impairment of Pullmantur related assets of $399.3 million. |
(5) | Amount for 2014 excludes restructuring and related impairment charges of $4.3 million, other initiative costs of $21.2 million, an $11.0 million loss related to the estimated impact of Pullmantur's non-core businesses that were sold in 2014 and a loss of $17.4 million recognized on the sale of Celebrity Century. Additionally, the amount for 2014 excludes $28.9 million of net income resulting from |
(6) | We reclassified prepaid commissions of $64.6 million from Customer deposits to Prepaid expenses and other assets in our consolidated balance sheet as of December 31, 2017 in order to conform to the current year presentation. |
• | a review of our critical accounting policies and of our financial presentation, including discussion of certain operational and financial metrics we utilize to assist us in managing our business; |
• | a discussion of our results of operations for the year ended December 31, 2018 compared to the same period in 2017 and the year ended December 31, 2017 compared to the same period in 2016; |
• | a discussion of our business outlook, including our expectations for selected financial items for the first quarter and full year of 2019; and |
• | a discussion of our liquidity and capital resources, including our future capital and contractual commitments and potential funding sources. |
• | Passenger ticket revenues, which consist of revenue recognized from the sale of passenger tickets and the sale of air transportation to and from our ships; and |
• | Onboard and other revenues, which consist primarily of revenues from the sale of goods and/or services onboard our ships not included in passenger ticket prices, cancellation fees, sales of vacation protection insurance and pre- and post-cruise tours. Onboard and other revenues also includes revenues we receive from independent third-party concessionaires that pay us a percentage of their revenues in exchange for the right to provide selected goods and/or services onboard our ships, as well as revenues received for our bareboat charter, procurement and management related services we perform on behalf of our unconsolidated affiliates. |
• | Commissions, transportation and other expenses, which consist of those costs directly associated with passenger ticket revenues, including travel agent commissions, air and other transportation expenses, port costs that vary with passenger head counts and related credit card fees; |
• | Onboard and other expenses, which consist of the direct costs associated with onboard and other revenues, including the costs of products sold onboard our ships, vacation protection insurance premiums, costs associated with pre- and post-cruise tours and related credit card fees as well as the minimal costs associated with concession revenues, as the costs are mostly incurred by third-party concessionaires and costs incurred for the procurement and management related services we perform on behalf of our unconsolidated affiliates; |
• | Payroll and related expenses, which consist of costs for shipboard personnel (costs associated with our shoreside personnel are included in Marketing, selling and administrative expenses); |
• | Food expenses, which include food costs for both guests and crew; |
• | Fuel expenses, which include fuel and related delivery, storage and emission consumable costs and the financial impact of fuel swap agreements; and |
• | Other operating expenses, which consist primarily of operating costs such as repairs and maintenance, port costs that do not vary with passenger head counts, vessel related insurance, entertainment and gains and/or losses related to the sale of our ships, if any. |
• | Our Net Income attributable to Royal Caribbean Cruises Ltd. and Adjusted Net Income for the year ended December 31, 2018 was $1.8 billion and $1.9 billion, or $8.56 and $8.86 per share on a diluted basis, respectively, as compared to both Net Income attributable to Royal Caribbean Cruises Ltd. and Adjusted Net Income of $1.6 billion, or $7.53 per share on a diluted basis, respectively, for the year ended December 31, 2017. |
• | Total revenues, excluding the effect of changes in foreign currency rates, increased by $704.9 million for the year ended December 31, 2018 compared to the same period in 2017 primarily due to an increase in capacity and an increase in ticket prices and onboard spending on a per passenger basis, which are further discussed below. |
• | The effect of changes in foreign currency exchange rates related to our passenger ticket and onboard and other revenue transactions, denominated in currencies other than the United States dollar, resulted in an increase in total revenues of $11.1 million for the year ended December 31, 2018 compared to the same period in 2017. |
• | Total cruise operating expenses, excluding the effect of changes in foreign currency rate, increased by $357.5 million for the year ended December 31, 2018 compared to the same period in 2017, primarily due to an increase in capacity, which is further discussed below. |
• | The effect of changes in foreign currency exchange rates related to our cruise operating expenses, denominated in currencies other than the United States dollar, resulted in an increase in total operating expenses of $8.1 million for the year ended December 31, 2018 compared to the same period in 2017. |
• | On July 31, 2018, we acquired a 66.7% equity stake in Silversea Cruises for $1.02 billion in cash and contingent consideration payable upon achievement of certain 2019-2020 performance metrics by Silversea Cruises. Due to the three-month reporting lag, our consolidated results of operations for the year ended December 31, 2018 only include results for August and September 2018 for Silversea Cruises. Refer to Note 1. General and Note 3. Business Combination to our consolidated financial statements under Item 8. Financial Statements and Supplementary Data for further information on the three-month reporting lag and the Silversea Cruises acquisition. |
• | In March 2018, we took delivery of Symphony of the Seas. To finance the purchase, we borrowed $1.2 billion under a previously committed unsecured term loan. Refer to Note 9. Debt to our consolidated financial statements under Item 8. Financial Statements and Supplementary Data for further information. The ship entered service at the end of the first quarter of 2018. |
• | In March 2018, we completed the purchase of Azamara Pursuit, which entered service during the third quarter of 2018. |
• | In April 2018, TUI Cruises, our 50% joint venture, took delivery of a new Mein Schiff 1 and also sold the original Mein Schiff 1 to an affiliate of TUI AG. Due to the sale of the original Mein Schiff 1, we recognized a gain of $21.8 million for the year ended December 31, 2018 related to our deferred gain from the 2009 sale of this ship to TUI Cruises. Refer to Note 8. Other Assets to our consolidated financial statements under Item 8. Financial Statements and Supplementary Data for further information. |
• | In October 2018, we took delivery of Celebrity Edge. To finance the purchase, we borrowed $729.0 million under a previously committed unsecured term loan. Refer to Note 9. Debt to our consolidated financial statements under Item 8. Financial Statements and Supplementary Data for further information. The ship entered service in December 2018. |
• | For the year ended December 31, 2018, we recognized an impairment loss of $23.3 million related to the Skysea Holding investment, debt facility and other receivables due, which is reported within Other income |
Year Ended December 31, | |||||||||||
2018 | 2017 | 2016 | |||||||||
Net Income attributable to Royal Caribbean Cruises Ltd. | $ | 1,811,042 | $ | 1,625,133 | $ | 1,283,388 | |||||
Adjusted Net Income attributable to Royal Caribbean Cruises Ltd. | 1,873,363 | 1,625,133 | 1,314,689 | ||||||||
Net Adjustments to Net Income attributable to Royal Caribbean Cruises Ltd. - Increase | $ | 62,321 | $ | — | $ | 31,301 | |||||
Adjustments to Net Income attributable to Royal Caribbean Cruises Ltd.: | |||||||||||
Impairment loss related to Skysea Holding (1) | $ | 23,343 | $ | — | $ | — | |||||
Impairment and other costs related to exit of tour operations business (2) | 11,255 | — | — | ||||||||
Transaction costs related to the Silversea Cruises acquisition (3) | 31,759 | — | — | ||||||||
Amortization of Silversea Cruises intangible assets resulting from the acquisition (3) | 2,046 | — | — | ||||||||
Noncontrolling interest adjustment (4) | 3,156 | — | — | ||||||||
Impact of change in accounting principle (5) | (9,238 | ) | — | — | |||||||
Net loss related to the elimination of the Pullmantur reporting lag | — | — | 21,656 | ||||||||
Net gain related to the sale of the Pullmantur and CDF Croisières de France brands | — | — | (3,834 | ) | |||||||
Restructuring charges | — | — | 8,452 | ||||||||
Other initiative costs | — | — | 5,027 | ||||||||
Net Adjustments to Net Income attributable to Royal Caribbean Cruises Ltd. - Increase | $ | 62,321 | $ | — | $ | 31,301 | |||||
Basic: | |||||||||||
Earnings per Share | $ | 8.60 | $ | 7.57 | $ | 5.96 | |||||
Adjusted Earnings per Share | $ | 8.90 | $ | 7.57 | $ | 6.10 | |||||
Diluted: | |||||||||||
Earnings per Share | $ | 8.56 | $ | 7.53 | $ | 5.93 | |||||
Adjusted Earnings per Share | $ | 8.86 | $ | 7.53 | $ | 6.08 | |||||
Weighted-Average Shares Outstanding: | |||||||||||
Basic | 210,570 | 214,617 | 215,393 | ||||||||
Diluted | 211,554 | 215,694 | 216,316 |
(1) | Refer to Note 8. Other Assets to our consolidated financial statements under Item 8. Financial Statements and Supplementary Data for information on the impairment loss related to Skysea Holding. |
(2) | In 2014, we created a tour operations business that focused on developing, marketing and selling land based tours around the world through an e-commerce platform. During the second quarter of 2018, we decided to cease operations and exit this business. As a result, we incurred exit costs, primarily consisting of fixed asset impairment charges and severance expense. |
(3) | Refer to Note 3. Business Combination to our consolidated financial statements under Item 8. Financial Statements and Supplementary Data for information on the Silversea Cruises acquisition. |
(4) | Adjustment made to exclude the impact of the contractual accretion requirements associated with the put option held by Silversea Cruises Group Ltd.'s noncontrolling interest. Refer to Note 10. Noncontrolling Interest to our consolidated financial statements under Item 8. Financial Statements and Supplementary Data for further information on noncontrolling interest. |
(5) | In January 2018, we elected to change our accounting policy for recognizing stock-based compensation expense from the graded attribution method to the straight-line attribution method for time-based stock awards. Refer to Note 2. Summary of Significant Accounting Policies to our consolidated financial statements under Item 8. Financial Statements and Supplementary Data for further information on our accounting policy. |
Year Ended December 31, | ||||||||
2018 | 2017 | 2016 | ||||||
Passenger ticket revenues | 71.5 | % | 71.9 | % | 72.4 | % | ||
Onboard and other revenues | 28.5 | % | 28.1 | % | 27.6 | % | ||
Total revenues | 100.0 | % | 100.0 | % | 100.0 | % | ||
Cruise operating expenses: | ||||||||
Commissions, transportation and other | 15.1 | % | 15.5 | % | 15.9 | % | ||
Onboard and other | 5.7 | % | 5.6 | % | 5.8 | % | ||
Payroll and related | 9.7 | % | 9.7 | % | 10.4 | % | ||
Food | 5.5 | % | 5.6 | % | 5.7 | % | ||
Fuel | 7.5 | % | 7.8 | % | 8.4 | % | ||
Other operating | 12.0 | % | 11.5 | % | 12.8 | % | ||
Total cruise operating expenses | 55.4 | % | 55.8 | % | 59.0 | % | ||
Marketing, selling and administrative expenses | 13.7 | % | 13.5 | % | 13.0 | % | ||
Depreciation and amortization expenses | 10.9 | % | 10.8 | % | 10.5 | % | ||
Operating income | 20.0 | % | 19.9 | % | 17.4 | % | ||
Other income (expense): | ||||||||
Interest income | 0.3 | % | 0.3 | % | 0.2 | % | ||
Interest expense, net of interest capitalized | (3.5 | )% | (3.4 | )% | (3.6 | )% | ||
Equity investment income | 2.2 | % | 1.8 | % | 1.5 | % | ||
Other income (expense) | 0.1 | % | (0.1 | )% | (0.4 | )% | ||
(0.8 | )% | (1.4 | )% | (2.3 | )% | |||
Net Income | 19.1 | % | 18.5 | % | 15.1 | % | ||
Less: Net Income attributable to noncontrolling interest | 0.1 | % | — | % | — | % | ||
Net Income attributable to Royal Caribbean Cruises Ltd. | 19.1 | % | 18.5 | % | 15.1 | % |
Year Ended December 31, | ||||||||
2018 (1) | 2017 | 2016 (2) | ||||||
Passengers Carried | 6,084,201 | 5,768,496 | 5,754,747 | |||||
Passenger Cruise Days | 41,853,052 | 40,033,527 | 40,250,557 | |||||
APCD | 38,425,304 | 36,930,939 | 37,844,644 | |||||
Occupancy | 108.9 | % | 108.4 | % | 106.4 | % |
(1) | Due to the three-month reporting lag, these amounts only include August and September 2018 amounts for Silversea Cruises. Refer to Note 1. General and Note 3. Business Combination to our consolidated financial statements under Item 8. Financial Statements and Supplementary Data for further information on the three-month reporting lag and the Silversea Cruises acquisition. |
(2) | These amounts do not include November and December 2015 amounts for Pullmantur as the net Pullmantur result for those months was included within Other expense in our consolidated statements of comprehensive income (loss) for the year ended December 31, 2016, as a result of the elimination of the Pullmantur reporting lag, and did not affect Gross Yields, Net Yields, Gross Cruise Costs, |
Year Ended December 31, | |||||||||||||||
2018 | 2018 On a Constant Currency basis | 2017 | 2016 | ||||||||||||
Passenger ticket revenues | $ | 6,792,716 | $ | 6,784,937 | $ | 6,313,170 | $ | 6,149,323 | |||||||
Onboard and other revenues | 2,701,133 | 2,697,798 | 2,464,675 | 2,347,078 | |||||||||||
Total revenues | 9,493,849 | 9,482,735 | 8,777,845 | 8,496,401 | |||||||||||
Less: | |||||||||||||||
Commissions, transportation and other | 1,433,739 | 1,432,267 | 1,363,170 | 1,349,677 | |||||||||||
Onboard and other | 537,355 | 536,941 | 495,552 | 493,558 | |||||||||||
Net revenues including other initiative costs | 7,522,755 | 7,513,527 | 6,919,123 | 6,653,166 | |||||||||||
Less: | |||||||||||||||
Other initiative costs included within Net Revenues | — | — | — | (2,230 | ) | ||||||||||
Net Revenues | $ | 7,522,755 | $ | 7,513,527 | $ | 6,919,123 | $ | 6,655,396 | |||||||
APCD | 38,425,304 | 38,425,304 | 36,930,939 | 37,844,644 | |||||||||||
Gross Yields | $ | 247.07 | $ | 246.78 | $ | 237.68 | $ | 224.51 | |||||||
Net Yields | $ | 195.78 | $ | 195.54 | $ | 187.35 | $ | 175.86 |
Year Ended December 31, | |||||||||||||||
2018 | 2018 On a Constant Currency basis | 2017 | 2016 | ||||||||||||
Total cruise operating expenses | $ | 5,262,207 | $ | 5,254,105 | $ | 4,896,579 | $ | 5,015,539 | |||||||
Marketing, selling and administrative expenses (1) (2) | 1,269,368 | 1,264,509 | 1,186,016 | 1,100,290 | |||||||||||
Gross Cruise Costs | 6,531,575 | 6,518,614 | 6,082,595 | 6,115,829 | |||||||||||
Less: | |||||||||||||||
Commissions, transportation and other | 1,433,739 | 1,432,267 | 1,363,170 | 1,349,677 | |||||||||||
Onboard and other | 537,355 | 536,941 | 495,552 | 493,558 | |||||||||||
Net Cruise Costs including other initiative costs | 4,560,481 | 4,549,406 | 4,223,873 | 4,272,594 | |||||||||||
Less: | |||||||||||||||
Net gain related to the sale of Pullmantur and CDF Croisières de France brands included within other operating expenses | — | — | — | (3,834 | ) | ||||||||||
Other initiative costs included within cruise operating expenses and marketing, selling and administrative expenses | — | — | — | 2,433 | |||||||||||
Net Cruise Costs | 4,560,481 | 4,549,406 | 4,223,873 | 4,273,995 | |||||||||||
Less: | |||||||||||||||
Fuel (3) | 710,617 | 710,621 | 681,118 | 713,252 | |||||||||||
Net Cruise Costs Excluding Fuel | $ | 3,849,864 | $ | 3,838,785 | $ | 3,542,755 | $ | 3,560,743 | |||||||
APCD | 38,425,304 | 38,425,304 | 36,930,939 | 37,844,644 | |||||||||||
Gross Cruise Costs per APCD | $ | 169.98 | $ | 169.64 | $ | 164.70 | $ | 161.60 | |||||||
Net Cruise Costs per APCD | $ | 118.68 | $ | 118.40 | $ | 114.37 | $ | 112.94 | |||||||
Net Cruise Cost Excluding Fuel per APCD | $ | 100.19 | $ | 99.90 | $ | 95.93 | $ | 94.09 |
(1) | For the year ended December 31, 2018, the amount does not include transaction costs related to the Silversea Cruises acquisition of $31.8 million, the impairment and other costs related to the exit of our tour operations business of $11.3 million and the impact of the change in accounting principle of $9.2 million related to the recognition of stock-based compensation expense. Refer to Note 2. Summary of Significant Accounting Policies to our consolidated financial statements under Item 8. Financial Statements and Supplementary Data for further information on the change in an accounting principle. |
(2) | For the year ended December 31, 2016, the amount does not include restructuring charges of $8.5 million. |
(3) | For the year ended December 31, 2016, the amount does not include fuel expense of $0.4 million included within other initiative costs associated with the redeployment of Pullmantur’s Empress to the Royal Caribbean International brand. |
As Reported | Constant Currency | ||
Net Yields | 6.0% to 8.0% | 6.5% to 8.5% | |
Net Cruise Costs per APCD | 5.25% to 5.75% | 5.5% to 6.0% | |
Net Cruise Costs per APCD, excluding Fuel | 8.25% to 8.75% | 8.5% to 9.0% | |
Capacity Change | 8.6% | ||
Depreciation and Amortization | $1,245 to $1,255 million | ||
Interest Expense, net | $393 to $403 million | ||
Fuel Consumption (metric tons) | 1,486,300 | ||
Fuel Expenses | $690 million | ||
Percent Hedged (fwd consumption) | 58% | ||
10% change in Fuel Prices | $37 million | ||
1% Change in Currency | $21 million | ||
1% Change in Net Yields | $87 million | ||
1% Change in NCC x Fuel | $45 million | ||
100 basis pt. Change in LIBOR | $36 million | ||
Adjusted Earnings per Share — Diluted | $9.75 to $10.00 |
As Reported | Constant Currency | ||
Net Yields | 5.5% to 6.0% | 7.5% to 8.0% | |
Net Cruise Costs per APCD | 6.5% to 7.0% | Approx. 7.5% | |
Net Cruise Costs per APCD, excluding Fuel | 9.0% to 9.5% | Approx. 10.0% | |
Capacity Change | 10.8% | ||
Depreciation and Amortization | $289 to $293 million | ||
Interest Expense, net | $91 to $95 million | ||
Fuel Consumption (metric tons) | 364,200 | ||
Fuel Expenses | $163 million | ||
Percent Hedged (fwd consumption) | 57% | ||
10% change in Fuel Prices | $9 million | ||
1% Change in Currency | $4 million | ||
1% Change in Net Yields | $19 million | ||
1% Change in NCC x Fuel | $12 million | ||
100 basis pt. Change in LIBOR | $6 million | ||
Adjusted Earnings per Share — Diluted | Approx. $1.10 |
Ranking | Q1 | Q2 | Q3 | Q4 | YTD 2019 | |||||
1 | AUD | GBP | GBP | AUD | GBP | |||||
2 | CAD | CAD | CNH | GBP | AUD | |||||
3 | GBP | AUD | EUR | EUR | CAD | |||||
4 | CNH | EUR | CAD | CAD | EUR | |||||
5 | EUR | CNH | AUD | CNH | CNH |
Currency Abbreviation | Currency | |
AUD | Australian Dollar | |
CAD | Canadian Dollar | |
CNH | Chinese Yuan | |
EUR | Euro | |
GBP | British Pound |
• | a 4.0% increase in capacity, which increased Passenger ticket revenues by $255.5 million, primarily due to the addition of Symphony of the Seas in the second quarter of 2018, Azamara Pursuit in the third quarter of 2018 and, to a lesser extent, Celebrity Edge in the fourth quarter of 2018 and the Silversea Cruises fleet, partially offset by the sale of Legend of the Seas in 2017 and additional dry dock days in 2018 compared to 2017. Additionally, 2017 includes the impact of canceled sailings from hurricane-related disruptions which did not recur in 2018; |
• | an increase of $216.3 million in ticket prices primarily driven by higher pricing on Asia/Pacific and Europe sailings and the increase to our ticket price on a per passenger basis due to the addition of Symphony of the Seas, Azamara Pursuit, Celebrity Edge and the Silversea Cruises fleet, partially offset by a decrease in pricing on Caribbean sailings; and |
• | the favorable effect of changes in foreign currency exchange rates related to our revenue transactions denominated in currencies other than the United States dollar of $7.8 million. |
• | a $112.5 million increase in onboard revenue attributable to higher spending on a per passenger basis primarily due to our revenue enhancing initiatives, including beverage package sales and promotions, gaming initiatives, and new strategies and promotions on our shore excursions, specialty restaurants and Internet services; |
• | a $97.4 million increase attributable to the 4.0% increase in capacity noted above; and |
• | a $23.2 million increase in other revenues primarily due to cancellation fees mostly associated with non-refundable deposit promotions and the addition of Silversea Cruises. |
• | the 4.0% increase in capacity noted above, which increased cruise operating expenses by $198.6 million; |
• | a $30.9 million gain recognized in 2017 resulting from the sale of Legend of the Seas, which did not recur in 2018; |
• | a $37.3 million increase in payroll and related expenses primarily driven by Silversea Cruises' higher crew to passenger ratio, an increase in employee bonuses and changes in our gratuity structure; |
• | a $23.5 million increase in air expense primarily related to the addition of Silversea Cruises and itinerary changes; |
• | a $19.7 million increase in vessel maintenance primarily due to the timing of scheduled drydocks; and |
• | an unfavorable effect of changes in foreign currency exchange rates related to our cruise operating expenses denominated in currencies other than the United States dollar of $8.1 million. |
• | an increase of $301.8 million in ticket prices primarily driven by the improvement in our ticket price on a per passenger basis due to the exit of the Pullmantur ships and the addition of Harmony of the Seas and Ovation of the Seas, as well as higher pricing on North America and Europe sailings. The increase in ticket prices on these itineraries was partially offset by lower pricing on Asia/Pacific sailings; and |
• | the favorable effect of changes in foreign currency exchange rates related to our revenue transactions denominated in currencies other than the United States dollar of approximately $10.6 million. |
• | a $125.3 million increase in onboard revenue attributable to higher spending on a per passenger basis primarily due to our revenue enhancing initiatives, including beverage package, shore excursion and specialty restaurant sales and promotions and increased revenue associated with internet and other telecommunication services; and |
• | a $45.7 million increase in other revenue primarily due to charter revenue and management fees earned from Pullmantur Holdings. |
• | a $120.5 million decrease attributable to the 2.4% decrease in capacity noted above; |
• | a $30.9 million gain resulting from the sale of Legend of the Seas in 2017 compared to an immaterial gain from the sale of Splendour of the Seas in 2016; |
• | a $17.2 million decrease in air expense due to itinerary changes and lower ticket costs; |
• | a $16.8 million decrease in vessel maintenance primarily due to the timing of scheduled drydocks; and |
• | a $15.5 million decrease in fuel expense, excluding the impact of the decrease in capacity. Our cost of fuel (net of the financial impact of fuel swap agreements) for 2017 decreased 4.6% per metric ton compared to 2016. |
• | a $33.8 million increase in commissions expense mainly due to the increase in ticket prices discussed above and changes in commission incentives; |
• | a $19.3 million increase in head taxes primarily due to itinerary changes; and |
• | an $18.9 million increase in food expenses mainly due to our new culinary initiatives. |
Payments due by period | |||||||||||||||||||
Less than | 1-3 | 3-5 | More than | ||||||||||||||||
Total | 1 year | years | years | 5 years | |||||||||||||||
Operating Activities: | |||||||||||||||||||
Operating lease obligations(1) | $ | 677,316 | $ | 67,682 | $ | 120,380 | $ | 105,281 | $ | 383,973 | |||||||||
Interest on long-term debt(2) | 1,654,937 | 349,736 | 510,679 | 414,775 | 379,747 | ||||||||||||||
Other(3) | 819,841 | 224,253 | 321,225 | 124,668 | 149,695 | ||||||||||||||
Investing Activities: | |||||||||||||||||||
Ship purchase obligations(4) | 9,075,882 | 1,241,657 | 4,107,744 | 2,500,756 | 1,225,725 | ||||||||||||||
Financing Activities: | |||||||||||||||||||
Commercial paper(5) | 775,488 | 775,488 | — | — | — | ||||||||||||||
Debt obligations(6) | 9,871,267 | 1,614,506 | 2,456,251 | 2,252,831 | 3,547,679 | ||||||||||||||
Capital lease obligations(7) | 130,944 | 32,335 | 69,703 | 19,168 | 9,738 | ||||||||||||||
Other(8) | 18,365 | 8,018 | 8,632 | 1,715 | — | ||||||||||||||
Total | $ | 23,024,040 | $ | 4,313,675 | $ | 7,594,614 | $ | 5,419,194 | $ | 5,696,557 |
(5) | Refer to Note 9. Debt to our consolidated financial statements under Item 8. Financial Statements and Supplemental Data to our consolidated financial statements for further information. |
(6) | Debt denominated in other currencies is calculated based on the applicable exchange rate at December 31, 2018. In addition, debt obligations presented above are net of debt issuance costs of $206.7 million as of December 31, 2018. |
Debt Instrument | Swap Notional as of December 31, 2018 (In thousands) | Maturity | Debt Fixed Rate | Swap Floating Rate: LIBOR plus | All-in Swap Floating Rate as of December 31, 2018 | ||
Oasis of the Seas term loan | $ | 105,000 | October 2021 | 5.41% | 3.87% | 6.63% | |
Unsecured senior notes | 650,000 | November 2022 | 5.25% | 3.63% | 6.25% | ||
$ | 755,000 |
Debt Instrument | Swap Notional as of December 31, 2018 (In thousands) | Maturity | Debt Floating Rate | All-in Swap Fixed Rate | |||
Celebrity Reflection term loan | $ | 327,250 | October 2024 | LIBOR plus | 0.40% | 2.85% | |
Quantum of the Seas term loan | 490,000 | October 2026 | LIBOR plus | 1.30% | 3.74% | ||
Anthem of the Seas term loan | 513,542 | April 2027 | LIBOR plus | 1.30% | 3.86% | ||
Ovation of the Seas term loan | 657,083 | April 2028 | LIBOR plus | 1.00% | 3.16% | ||
Harmony of the Seas term loan (1) | 627,660 | May 2028 | EURIBOR plus | 1.15% | 2.26% | ||
$ | 2,615,535 |
(1) | Interest rate swap agreements hedging the Euro-denominated term loan for Harmony of the Seas include EURIBOR zero-floors matching the hedged debt EURIBOR zero-floor. Amount presented is based on the exchange rate as of December 31, 2018. |
(2) | Financial Statement Schedules |
(3) | Exhibits |
Incorporated By Reference | ||||||||
Exhibit Number | Exhibit Description | Form | Exhibit | Filing Date/ Period End Date | ||||
3.1 | S-3 | 3.1 | 3/23/2009 | |||||
3.2 | 8-K | 3.1 | 12/6/2018 | |||||
4.1 | Indenture dated as of July 15, 1994, by and between the Company, as issuer, and The Bank of New York Trust Company, N.A., successor to NationsBank of Georgia, National Association, as Trustee | 20-F | 2.4 | 12/31/1994 | ||||
4.2 | Sixth Supplemental Indenture dated as of October 14, 1997, to the Indenture, dated as of July 15, 1994, by and between the Company, as issuer, and The Bank of New York Trust Company, N.A., as Trustee | 20-F | 2.11 | 12/31/1997 | ||||
4.3 | Eighth Supplemental Indenture dated as of March 16, 1998, to the Indenture, dated as of July 15, 1994, by and between the Company, as issuer, and The Bank of New York Trust Company, N.A., as Trustee | 20-F | 2.13 | 12/31/1997 | ||||
4.4 | S-3 | 4.1 | 7/31/2006 | |||||
4.5 | 8-K | 4.1 | 11/7/2012 | |||||
4.6 | 8-K | 4.1 | 11/28/2017 | |||||
4.7 | ||||||||
4.8 | ||||||||
4.9 | ||||||||
10.1 | Amended and Restated Registration Rights Agreement dated as of July 30, 1997, by and among the Company, A. Wilhelmsen AS., Cruise Associates, Monument Capital Corporation, Archinav Holdings, Ltd. and Overseas Cruiseship, Inc. | 20-F | 2.20 | 12/31/1997 | ||||
10.2 | 8-K | 10.1 | 12/7/2017 |
Incorporated By Reference | ||||||||
Exhibit Number | Exhibit Description | Form | Exhibit | Filing Date/ Period End Date | ||||
10.3 | 8-K | 10.3 | 10/17/2017 | |||||
10.4 | 10-K | 10.7 | 12/31/2015 | |||||
10.5 | 10-Q | 10.4 | 6/30/2018 | |||||
10.6 | 10-K | 10.8 | 12/31/2015 | |||||
10.7 | 10-Q | 10.5 | 6/30/2018 | |||||
10.8 | 10-Q | 10.1 | 3/31/2016 | |||||
10.9 | 10-Q | 10.6 | 6/30/2018 | |||||
10.10 | 10-K | 10.10 | 12/31/2015 | |||||
10.11 | 10-Q | 10.1 | 3/31/2018 | |||||
10.12 | 8-K | 10.1 | 11/19/2015 | |||||
10.13 | 10-Q | 10.7 | 6/30/2018 | |||||
10.14 | 10-Q | 10.8 | 6/30/2018 | |||||
10.15 | 8-K | 10.2 | 11/19/2015 |
Incorporated By Reference | ||||||||
Exhibit Number | Exhibit Description | Form | Exhibit | Filing Date/ Period End Date | ||||
10.16 | 10-Q | 10.9 | 6/30/2018 | |||||
10.17 | 10-Q | 10.10 | 6/30/2018 | |||||
10.18 | ||||||||
10.19 | 8-K | 10.2 | 6/28/2016 | |||||
10.20 | ||||||||
10.21 | 8-K | 10.1 | 7/28/2017 | |||||
10.22 | 8-K | 10.2 | 7/28/2017 | |||||
10.23 | 8-K | 10.3 | 7/28/2017 | |||||
10.24 | 8-K | 10.1 | 10/17/2017 | |||||
10.25 | 10-Q | 10.11 | 6/30/2018 | |||||
10.26 | 8-K | 10.2 | 10/17/2017 |
Incorporated By Reference | ||||||||
Exhibit Number | Exhibit Description | Form | Exhibit | Filing Date/ Period End Date | ||||
10.27 | 10-Q | 10.12 | 6/30/2018 | |||||
10.28 | 8-K | 10.1 | 7/5/2018 | |||||
10.29 | 8-K | 10.1 | 6/18/2018 | |||||
10.30 | 10-K | 10.17 | 12/31/2016 | |||||
10.31 | 10-Q | 10.3 | 9/30/2008 | |||||
10.32 | 10-Q | 10.4 | 9/30/2008 | |||||
10.33 | 10-K | 10.23 | 12/31/2013 | |||||
10.34 | 10-Q | 10.7 | 9/30/2017 | |||||
10.35 | 10-K | 10.31 | 12/31/2010 | |||||
10.36 | 10-K | 10.27 | 12/31/2014 | |||||
10.37 | 10-K | 10.26 | 12/31/2015 | |||||
10.38 | 10-K | 10.22 | 12/31/2012 | |||||
10.39 | 10-Q | 10.2 | 6/30/2013 | |||||
10.40 | 10-Q | 10.3 | 6/30/2015 | |||||
10.41 | 10-K | 10.33 | 12/31/2014 | |||||
10.42 | 10-K | 10.31 | 12/31/2016 | |||||
10.43 | 10-Q | 10.4 | 6/30/2015 | |||||
10.44 | 8-K | 10.3 | 12/8/2005 | |||||
10.45 | 10-K | 10.31 | 12/31/2006 | |||||
10.46 | 10-K | 10.31 | 12/31/2007 | |||||
10.47 | 10-Q | 10.1 | 9/30/2008 | |||||
10.48 | 10-K | 10.38 | 12/31/2008 | |||||
10.49 | 10-K | 10.35 | 12/31/2013 | |||||
18.1 | ||||||||
21.1 |
Incorporated By Reference | ||||||||
Exhibit Number | Exhibit Description | Form | Exhibit | Filing Date/ Period End Date | ||||
23.1 | ||||||||
23.2 | ||||||||
24.1 | ||||||||
31.1 | ||||||||
31.2 | ||||||||
32.1 |
* | Filed herewith |
** | Furnished herewith |
101 | The following financial statements from Royal Caribbean Cruises Ltd.'s Annual Report on Form 10-K for the year ended December 31, 2018 formatted in XBRL are as follows: | |
(i) | the Consolidated Statements of Comprehensive Income (Loss) for the years ended December 31, 2018, 2017 and 2016; | |
(ii) | the Consolidated Balance Sheets at December 31, 2018 and 2017; | |
(iii) | the Consolidated Statements of Cash Flows for the years ended December 31, 2018, 2017 and 2016; | |
(iv) | the Consolidated Statements of Shareholders' Equity for the years ended December 31, 2018, 2017 and 2016; and | |
(v) | the Notes to the Consolidated Financial Statements, tagged in summary and detail. |
ROYAL CARIBBEAN CRUISES LTD. (Registrant) | |
By: | /s/ JASON T. LIBERTY |
Jason T. Liberty Executive Vice President, Chief Financial Officer (Principal Financial Officer and duly authorized signatory) |
/s/ RICHARD D. FAIN |
Richard D. Fain Director, Chairman and Chief Executive Officer (Principal Executive Officer) |
/s/ JASON T. LIBERTY |
Jason T. Liberty Executive Vice President, Chief Financial Officer (Principal Financial Officer) |
/s/ HENRY L. PUJOL |
Henry L. Pujol Senior Vice President, Chief Accounting Officer (Principal Accounting Officer) |
* |
John F. Brock Director |
* |
Stephen R. Howe Jr. Director |
* |
William L. Kimsey Director |
* |
Maritza G. Montiel Director |
* |
Ann S. Moore Director |
* |
Eyal M. Ofer Director |
* |
Thomas J. Pritzker Director |
* |
William K. Reilly Director |
* |
Bernt Reitan Director |
* |
Vagn O. Sørensen Director |
* |
Donald Thompson Director |
* |
Arne Alexander Wilhelmsen Director |
*By: | /s/ JASON T. LIBERTY |
Jason T. Liberty, as Attorney-in-Fact |
Year Ended December 31, | |||||||||||
2018 | 2017 | 2016 | |||||||||
(in thousands, except per share data) | |||||||||||
Passenger ticket revenues | $ | 6,792,716 | $ | 6,313,170 | $ | 6,149,323 | |||||
Onboard and other revenues | 2,701,133 | 2,464,675 | 2,347,078 | ||||||||
Total revenues | 9,493,849 | 8,777,845 | 8,496,401 | ||||||||
Cruise operating expenses: | |||||||||||
Commissions, transportation and other | 1,433,739 | 1,363,170 | 1,349,677 | ||||||||
Onboard and other | 537,355 | 495,552 | 493,558 | ||||||||
Payroll and related | 924,985 | 852,990 | 882,891 | ||||||||
Food | 520,909 | 492,857 | 485,673 | ||||||||
Fuel | 710,617 | 681,118 | 713,676 | ||||||||
Other operating | 1,134,602 | 1,010,892 | 1,090,064 | ||||||||
Total cruise operating expenses | 5,262,207 | 4,896,579 | 5,015,539 | ||||||||
Marketing, selling and administrative expenses | 1,303,144 | 1,186,016 | 1,108,742 | ||||||||
Depreciation and amortization expenses | 1,033,697 | 951,194 | 894,915 | ||||||||
Operating Income | 1,894,801 | 1,744,056 | 1,477,205 | ||||||||
Other income (expense): | |||||||||||
Interest income | 32,800 | 30,101 | 20,856 | ||||||||
Interest expense, net of interest capitalized | (333,672 | ) | (299,982 | ) | (307,370 | ) | |||||
Equity investment income | 210,756 | 156,247 | 128,350 | ||||||||
Other income (expense) (1) | 11,107 | (5,289 | ) | (35,653 | ) | ||||||
(79,009 | ) | (118,923 | ) | (193,817 | ) | ||||||
Net Income | 1,815,792 | 1,625,133 | 1,283,388 | ||||||||
Less: Net Income attributable to noncontrolling interest | 4,750 | — | — | ||||||||
Net Income attributable to Royal Caribbean Cruises Ltd. | $ | 1,811,042 | $ | 1,625,133 | $ | 1,283,388 | |||||
Earnings per Share: | |||||||||||
Basic | $ | 8.60 | $ | 7.57 | $ | 5.96 | |||||
Diluted | $ | 8.56 | $ | 7.53 | $ | 5.93 | |||||
Comprehensive Income (Loss) | |||||||||||
Net Income | $ | 1,815,792 | $ | 1,625,133 | $ | 1,283,388 | |||||
Other comprehensive income (loss): | |||||||||||
Foreign currency translation adjustments | (14,251 | ) | 17,307 | 2,362 | |||||||
Change in defined benefit plans | 7,643 | (5,583 | ) | (1,636 | ) | ||||||
(Loss) gain on cash flow derivative hedges | (286,861 | ) | 570,495 | 411,223 | |||||||
Total other comprehensive (loss) income | (293,469 | ) | 582,219 | 411,949 | |||||||
Comprehensive Income | $ | 1,522,323 | $ | 2,207,352 | $ | 1,695,337 | |||||
Less: Comprehensive Income attributable to noncontrolling interest | 4,750 | — | — | ||||||||
Comprehensive Income attributable to Royal Caribbean Cruises Ltd. | $ | 1,517,573 | $ | 2,207,352 | $ | 1,695,337 |
(1) | For the year ended December 31, 2016, Other income (expense) included a $21.7 million loss related to the 2016 elimination of the Pullmantur reporting lag. |
As of December 31, | |||||||
2018 | 2017 | ||||||
(in thousands, except share data) | |||||||
Assets | |||||||
Current assets | |||||||
Cash and cash equivalents | $ | 287,852 | $ | 120,112 | |||
Trade and other receivables, net | 324,507 | 318,641 | |||||
Inventories | 153,573 | 111,393 | |||||
Prepaid expenses and other assets | 456,547 | 258,171 | |||||
Derivative financial instruments | 19,565 | 99,320 | |||||
Total current assets | 1,242,044 | 907,637 | |||||
Property and equipment, net | 23,466,163 | 19,735,180 | |||||
Goodwill | 1,378,353 | 288,512 | |||||
Other assets | 1,611,710 | 1,429,597 | |||||
Total assets | $ | 27,698,270 | $ | 22,360,926 | |||
Liabilities, redeemable noncontrolling interest and shareholders' equity | |||||||
Current liabilities | |||||||
Current portion of long-term debt | $ | 1,646,841 | $ | 1,188,514 | |||
Commercial paper | 775,488 | — | |||||
Accounts payable | 488,212 | 360,113 | |||||
Accrued interest | 74,550 | 47,469 | |||||
Accrued expenses and other liabilities | 899,761 | 903,022 | |||||
Derivative financial instruments | 78,476 | 47,464 | |||||
Customer deposits | 3,148,837 | 2,308,291 | |||||
Total current liabilities | 7,112,165 | 4,854,873 | |||||
Long-term debt | 8,355,370 | 6,350,937 | |||||
Other long-term liabilities | 583,254 | 452,813 | |||||
Total liabilities | 16,050,789 | 11,658,623 | |||||
Commitments and contingencies (Note 18) | |||||||
Redeemable noncontrolling interest | 542,020 | — | |||||
Shareholders' equity | |||||||
Preferred stock ($0.01 par value; 20,000,000 shares authorized; none outstanding) | — | — | |||||
Common stock ($0.01 par value; 500,000,000 shares authorized; 235,847,683 and 235,198,901 shares issued, December 31, 2018 and December 31, 2017, respectively) | 2,358 | 2,352 | |||||
Paid-in capital | 3,420,900 | 3,390,117 | |||||
Retained earnings | 10,263,282 | 9,022,405 | |||||
Accumulated other comprehensive loss | (627,734 | ) | (334,265 | ) | |||
Treasury stock (26,830,765 and 21,861,308 common shares at cost, December 31, 2018 and December 31, 2017, respectively) | (1,953,345 | ) | (1,378,306 | ) | |||
Total shareholders' equity | 11,105,461 | 10,702,303 | |||||
Total liabilities, redeemable noncontrolling interest and shareholders’ equity | $ | 27,698,270 | $ | 22,360,926 |
Year Ended December 31, | |||||||||||
2018 | 2017 | 2016 | |||||||||
Operating Activities | |||||||||||
Net Income | $ | 1,815,792 | $ | 1,625,133 | $ | 1,283,388 | |||||
Adjustments: | |||||||||||
Depreciation and amortization | 1,033,697 | 951,194 | 894,915 | ||||||||
Impairment losses | 33,651 | — | — | ||||||||
Net deferred income tax (benefit) expense | (2,679 | ) | 1,730 | 2,608 | |||||||
Loss (gain) on derivative instruments not designated as hedges | 61,148 | (61,704 | ) | 45,670 | |||||||
Share-based compensation expense | 46,061 | 69,459 | 32,659 | ||||||||
Equity investment income | (210,756 | ) | (156,247 | ) | (128,350 | ) | |||||
Amortization of debt issuance costs | 41,978 | 45,943 | 52,795 | ||||||||
Gain on sale of property and equipment | — | (30,902 | ) | — | |||||||
Gain on sale of unconsolidated affiliate | (13,680 | ) | — | — | |||||||
Recognition of deferred gain | (21,794 | ) | — | — | |||||||
Changes in operating assets and liabilities: | |||||||||||
(Increase) decrease in trade and other receivables, net | (9,573 | ) | (32,043 | ) | 4,759 | ||||||
(Increase) decrease in inventories | (23,849 | ) | 2,424 | (1,679 | ) | ||||||
(Increase) decrease in prepaid expenses and other assets | (71,770 | ) | 20,859 | 11,519 | |||||||
Increase in accounts payable | 91,737 | 36,780 | 29,564 | ||||||||
Increase in accrued interest | 18,773 | 1,303 | 7,841 | ||||||||
Increase in accrued expenses and other liabilities | 42,937 | 34,215 | 20,718 | ||||||||
Increase in customer deposits | 385,990 | 274,705 | 188,632 | ||||||||
Dividends received from unconsolidated affiliates | 243,101 | 109,677 | 75,942 | ||||||||
Other, net | 18,375 | (17,960 | ) | (4,291 | ) | ||||||
Net cash provided by operating activities | 3,479,139 | 2,874,566 | 2,516,690 | ||||||||
Investing Activities | |||||||||||
Purchases of property and equipment | (3,660,028 | ) | (564,138 | ) | (2,494,363 | ) | |||||
Cash received on settlement of derivative financial instruments | 76,529 | 63,224 | 110,637 | ||||||||
Cash paid on settlement of derivative financial instruments | (98,074 | ) | — | (323,839 | ) | ||||||
Investments in and loans to unconsolidated affiliates | (27,172 | ) | (10,396 | ) | (9,155 | ) | |||||
Cash received on loans to unconsolidated affiliates | 124,238 | 62,303 | 38,213 | ||||||||
Proceeds from the sale of property and equipment | — | 230,000 | — | ||||||||
Proceeds from the sale of unconsolidated affiliate | 13,215 | — | — | ||||||||
Acquisition of Silversea Cruises, net of cash acquired | (916,135 | ) | — | — | |||||||
Other, net (1) | (1,731 | ) | 5,415 | (46,385 | ) | ||||||
Net cash used in investing activities | (4,489,158 | ) | (213,592 | ) | (2,724,892 | ) | |||||
Financing Activities | |||||||||||
Debt proceeds | 8,590,740 | 5,866,966 | 7,338,560 | ||||||||
Debt issuance costs | (81,959 | ) | (51,590 | ) | (88,241 | ) | |||||
Repayments of debt | (6,963,511 | ) | (7,835,087 | ) | (6,365,570 | ) | |||||
Proceeds from issuance of commercial paper notes | 4,730,286 | — | — | ||||||||
Repayments of commercial paper notes | (3,965,450 | ) | — | — |
Year Ended December 31, | |||||||||||
2018 | 2017 | 2016 | |||||||||
Purchase of treasury stock | (575,039 | ) | (224,998 | ) | (299,960 | ) | |||||
Dividends paid | (527,494 | ) | (437,455 | ) | (346,487 | ) | |||||
Proceeds from exercise of common stock options | 4,264 | 2,525 | 2,258 | ||||||||
Other, net | (13,764 | ) | 3,843 | 3,249 | |||||||
Net cash provided by (used in) financing activities | 1,198,073 | (2,675,796 | ) | 243,809 | |||||||
Effect of exchange rate changes on cash | (20,314 | ) | 2,331 | (24,569 | ) | ||||||
Net increase (decrease) in cash and cash equivalents | 167,740 | (12,491 | ) | 11,038 | |||||||
Cash and cash equivalents at beginning of year | 120,112 | 132,603 | 121,565 | ||||||||
Cash and cash equivalents at end of year | $ | 287,852 | $ | 120,112 | $ | 132,603 | |||||
Supplemental Disclosures | |||||||||||
Cash paid during the year for: | |||||||||||
Interest, net of amount capitalized | $ | 252,466 | $ | 249,615 | $ | 256,775 | |||||
Non-Cash Investing Activities | |||||||||||
Contingent consideration for the acquisition of Silversea Cruises | $ | 44,000 | $ | — | $ | — | |||||
Purchases of property and equipment included in accounts payable and accrued expenses and other liabilities | $ | — | $ | 139,644 | $ | — | |||||
Notes receivable issued upon sale of property and equipment | $ | — | $ | 20,409 | $ | 213,042 |
Common Stock | Paid-in Capital | Retained Earnings | Accumulated Other Comprehensive Income (Loss) | Treasury Stock | Total Shareholders' Equity | ||||||||||||||||||
(in thousands) | |||||||||||||||||||||||
Balances at January 1, 2016 | $ | 2,339 | $ | 3,297,619 | $ | 6,944,862 | $ | (1,328,433 | ) | $ | (853,348 | ) | $ | 8,063,039 | |||||||||
Activity related to employee stock plans | 7 | 30,898 | — | — | — | 30,905 | |||||||||||||||||
Common stock dividends, $1.71 per share | — | — | (367,909 | ) | — | — | (367,909 | ) | |||||||||||||||
Changes related to cash flow derivative hedges | — | — | — | 411,223 | — | 411,223 | |||||||||||||||||
Change in defined benefit plans | — | — | — | (1,636 | ) | — | (1,636 | ) | |||||||||||||||
Foreign currency translation adjustments | — | — | — | 2,362 | — | 2,362 | |||||||||||||||||
Purchase of treasury stock | — | — | — | — | (299,960 | ) | (299,960 | ) | |||||||||||||||
Net Income attributable to Royal Caribbean Cruises Ltd. | — | — | 1,283,388 | — | — | 1,283,388 | |||||||||||||||||
Balances at December 31, 2016 | 2,346 | 3,328,517 | 7,860,341 | (916,484 | ) | (1,153,308 | ) | 9,121,412 | |||||||||||||||
Activity related to employee stock plans | 6 | 61,600 | — | — | — | 61,606 | |||||||||||||||||
Common stock dividends, $2.16 per share | — | — | (463,069 | ) | — | — | (463,069 | ) | |||||||||||||||
Changes related to cash flow derivative hedges | — | — | — | 570,495 | — | 570,495 | |||||||||||||||||
Change in defined benefit plans | — | — | — | (5,583 | ) | — | (5,583 | ) | |||||||||||||||
Foreign currency translation adjustments | — | — | — | 17,307 | — | 17,307 | |||||||||||||||||
Purchases of treasury stock | — | — | — | — | (224,998 | ) | (224,998 | ) | |||||||||||||||
Net Income attributable to Royal Caribbean Cruises Ltd. | — | — | 1,625,133 | — | — | 1,625,133 | |||||||||||||||||
Balances at December 31, 2017 | 2,352 | 3,390,117 | 9,022,405 | (334,265 | ) | (1,378,306 | ) | 10,702,303 | |||||||||||||||
Cumulative effect of accounting changes | — | — | (23,476 | ) | — | — | (23,476 | ) | |||||||||||||||
Activity related to employee stock plans | 6 | 30,783 | — | — | — | 30,789 | |||||||||||||||||
Common stock dividends, $2.60 per share | — | — | (546,689 | ) | — | — | (546,689 | ) | |||||||||||||||
Changes related to cash flow derivative hedges | — | — | — | (286,861 | ) | — | (286,861 | ) | |||||||||||||||
Change in defined benefit plans | — | — | — | 7,643 | — | 7,643 | |||||||||||||||||
Foreign currency translation adjustments | — | — | — | (14,251 | ) | — | (14,251 | ) | |||||||||||||||
Purchases of treasury stock | — | — | — | — | (575,039 | ) | (575,039 | ) | |||||||||||||||
Net Income attributable to Royal Caribbean Cruises Ltd. | — | — | 1,811,042 | — | — | 1,811,042 | |||||||||||||||||
Balances at December 31, 2018 | $ | 2,358 | $ | 3,420,900 | $ | 10,263,282 | $ | (627,734 | ) | $ | (1,953,345 | ) | $ | 11,105,461 |
Years | |
Ships | generally 30 |
Ship improvements | 3-20 |
Buildings and improvements | 10-40 |
Computer hardware and software | 3-10 |
Transportation equipment and other | 3-30 |
Leasehold improvements | Shorter of remaining lease term or useful life 3-30 |
(in thousands) | Estimated Fair Value as of Acquisition Date (as Previously Reported) | Measurement Period Adjustments (1) | Estimated Fair Value as of Acquisition Date (as Adjusted) | |||||||||
Assets | ||||||||||||
Cash and cash equivalents | $ | 103,865 | $ | — | $ | 103,865 | ||||||
Trade and other receivables, net | 5,640 | 1,523 | 7,163 | |||||||||
Inventories | 19,004 | (673 | ) | 18,331 | ||||||||
Prepaid expenses and other assets(2) | 119,920 | 576 | 120,496 | |||||||||
Derivative financial instruments | 2,886 | — | 2,886 | |||||||||
Property and equipment, net(3) | 1,109,467 | 4,803 | 1,114,270 | |||||||||
Goodwill | 1,086,539 | 3,471 | 1,090,010 | |||||||||
Other assets(4) | 494,657 | 3,800 | 498,457 | |||||||||
Total assets acquired | 2,941,978 | 13,500 | 2,955,478 | |||||||||
Liabilities | ||||||||||||
Current portion of long-term debt(5) | 26,851 | — | 26,851 | |||||||||
Accounts payable | 36,960 | — | 36,960 | |||||||||
Accrued interest | 1,773 | — | 1,773 | |||||||||
Accrued expenses and other liabilities | 80,571 | 1,960 | 82,531 | |||||||||
Customer deposits | 453,798 | — | 453,798 | |||||||||
Long-term debt(5) | 727,935 | — | 727,935 | |||||||||
Other long-term liabilities | 12,320 | 11,540 | 23,860 | |||||||||
Total liabilities assumed | 1,340,208 | 13,500 | 1,353,708 | |||||||||
Redeemable noncontrolling interest(6) | 537,770 | — | 537,770 | |||||||||
Total purchase price | $ | 1,064,000 | $ | — | $ | 1,064,000 |
(1) | As a result of additional information obtained about facts and circumstances that existed as of the acquisition date, we recorded measurement period adjustments during the fourth quarter of 2018, which resulted in a net increase to Goodwill of $3.5 million. |
(2) | Amount includes $32.0 million of cash held as collateral with credit card processors as of July 31, 2018. |
(3) | Property and equipment, net includes two ships under capital lease agreements amounting to $156.0 million as of July 31, 2018. The respective capital lease liabilities are reported within Long-term debt. Refer to Note 9. Debt for further information on the capital lease financing arrangements. |
(4) | Amount includes $494.6 million of intangible assets. Refer to Note 6. Intangible Assets for further information on the intangible assets acquired. |
(5) | Refer to Note 9. Debt for further information on long-term debt assumed. |
(6) | Refer to Note 10. Redeemable Noncontrolling Interest for further information on the redeemable noncontrolling interest recorded. |
Year Ended December 31, | |||||||||||
2018 | 2017 | 2016 | |||||||||
Revenues by itinerary | |||||||||||
North America(1) | $ | 5,399,951 | $ | 5,062,305 | $ | 4,606,875 | |||||
Asia/Pacific(2) | 1,463,083 | 1,588,802 | 1,536,799 | ||||||||
Europe(3) | 1,914,549 | 1,509,586 | 1,711,496 | ||||||||
Other regions | 348,145 | 285,954 | 354,529 | ||||||||
Total revenues by itinerary | 9,125,728 | 8,446,647 | 8,209,699 | ||||||||
Other revenues(4) | 368,121 | 331,198 | 286,702 | ||||||||
Total revenues | $ | 9,493,849 | $ | 8,777,845 | $ | 8,496,401 |
(1) | Includes the United States, Canada, Mexico and the Caribbean. |
(2) | Includes Southeast Asia (e.g., Singapore, Thailand and the Philippines), East Asia (e.g., China and Japan), South Asia (e.g., India and Pakistan) and Oceania (e.g., Australia and Fiji Islands) regions. |
(3) | Includes European countries (e.g., the Nordics, Germany, France, Italy, Spain and the United Kingdom). |
(4) | Includes revenues primarily related to cancellation fees, vacation protection insurance and pre- and post-cruise tours. Amounts also include revenues related to our bareboat charter, procurement and management related services we perform on behalf of our unconsolidated affiliates. Refer to Note 8. Other Assets for more information on our unconsolidated affiliates. |
Year Ended December 31, | ||||||||
2018 | 2017 | 2016 | ||||||
Passenger ticket revenues: | ||||||||
United States | 61 | % | 59 | % | 55 | % | ||
United Kingdom | 10 | % | 9 | % | 10 | % | ||
All other countries (1) | 29 | % | 32 | % | 35 | % |
(1) | No other individual country's revenue exceeded 10% for the years ended December 31, 2018, 2017 and 2016. |
Royal Caribbean International | Celebrity Cruises | Silversea Cruises | Total | ||||||||||||
Balance at December 31, 2016 | $ | 286,754 | $ | 1,632 | $ | — | $ | 288,386 | |||||||
Foreign currency translation adjustment | 126 | — | — | 126 | |||||||||||
Balance at December 31, 2017 | 286,880 | 1,632 | — | 288,512 | |||||||||||
Goodwill attributable to the acquisition of Silversea Cruises (1) | — | — | 1,090,010 | 1,090,010 | |||||||||||
Foreign currency translation adjustment | (169 | ) | — | — | (169 | ) | |||||||||
Balance at December 31, 2018 | $ | 286,711 | $ | 1,632 | $ | 1,090,010 | $ | 1,378,353 |
(1) | In 2018, we purchased Silversea Cruises. Refer to Note 3. Business Combination for further information. |
As of December 31, 2018 | ||||||||||||||
Remaining Weighted Average Amortization Period (Years) | Gross Carrying Value | Accumulated Amortization | Net Carrying Value | |||||||||||
Finite-life intangible assets: | ||||||||||||||
Customer relationships | 14.8 | $ | 97,400 | $ | 1,082 | $ | 96,318 | |||||||
Galapagos operating licenses | 25.8 | 47,669 | 4,206 | 43,463 | ||||||||||
Other finite-life intangible assets | 1.8 | 11,560 | 963 | 10,597 | ||||||||||
Total finite-life intangible assets | 156,629 | 6,251 | 150,378 | |||||||||||
Indefinite-life intangible assets | 351,725 | — | 351,725 | |||||||||||
Total intangible assets, net | $ | 508,354 | $ | 6,251 | $ | 502,103 |
Fair Value at Acquisition Date (in thousands) | Weighted Average Amortization Period (Years) | |||||
Silversea Cruises trade name | $ | 349,500 | Indefinite-life | |||
Customer relationships | 97,400 | 15 | ||||
Galapagos operating license | 36,100 | 26 | ||||
Other finite-life intangible assets | 11,560 | 2 | ||||
Total intangible assets | $ | 494,560 |
Year | |||
2019 | $ | 13,959 | |
2020 | $ | 12,995 | |
2021 | $ | 8,179 | |
2022 | $ | 8,179 | |
2023 | $ | 8,179 |
As of December 31, | |||||||
2018 | 2017 | ||||||
Ships | $ | 27,209,553 | $ | 23,714,745 | |||
Ship improvements | 2,965,634 | 2,410,525 | |||||
Ships under construction | 817,800 | 642,235 | |||||
Land, buildings and improvements, including leasehold improvements and port facilities | 321,136 | 250,079 | |||||
Computer hardware and software, transportation equipment and other | 1,120,988 | 762,512 | |||||
Total property and equipment | 32,435,111 | 27,780,096 | |||||
Less—accumulated depreciation and amortization(1) | (8,968,948 | ) | (8,044,916 | ) | |||
$ | 23,466,163 | $ | 19,735,180 |
(1) | Amount includes accumulated depreciation and amortization for assets in service. |
Year ended December 31, | ||||||||||||
2018 | 2017 | 2016 | ||||||||||
Share of equity income from investments | $ | 210,756 | $ | 156,247 | $ | 128,350 | ||||||
Dividends received | $ | 243,101 | $ | 109,677 | $ | 75,942 |
As of December 31, | ||||||||
2018 | 2017 | |||||||
Total notes receivable due from equity investments | $ | 201,979 | $ | 314,323 | ||||
Less-current portion(1) | 19,075 | 38,658 | ||||||
Long-term portion(2) | $ | 182,904 | $ | 275,665 |
Year ended December 31, | ||||||||||||
2018 | 2017 | 2016 | ||||||||||
Revenues | $ | 54,705 | $ | 53,532 | $ | 30,517 | ||||||
Expenses | $ | 11,531 | $ | 15,176 | $ | 12,795 |
As of December 31, | ||||||||
2018 | 2017 | |||||||
Current assets | $ | 471,428 | $ | 532,330 | ||||
Non-current assets | 3,826,018 | 3,673,613 | ||||||
Total assets | $ | 4,297,446 | $ | 4,205,943 | ||||
Current liabilities | $ | 1,064,741 | $ | 1,152,193 | ||||
Non- current liabilities | 2,217,909 | 1,974,166 | ||||||
Total liabilities | $ | 3,282,650 | $ | 3,126,359 | ||||
Equity attributable to: | ||||||||
Noncontrolling interest | $ | 1,672 | $ | 1,753 |
Year ended December 31, | ||||||||||||
2018 | 2017 | 2016 | ||||||||||
Total revenues | $ | 2,255,352 | $ | 1,994,014 | $ | 1,340,662 | ||||||
Total expenses | (1,779,160 | ) | (1,684,276 | ) | (1,078,470 | ) | ||||||
Net income | $ | 476,192 | $ | 309,738 | $ | 262,192 |
As of December 31, | ||||||||||||
Interest Rate | Maturities Through | 2018 | 2017 | |||||||||
Fixed rate debt: | ||||||||||||
Senior notes | 2.65% to 7.50% | 2020 - 2028 | $ | 1,724,194 | $ | 1,866,359 | ||||||
Secured senior notes | 7.25% | 2025 | 670,437 | — | ||||||||
Unsecured term loans | 2.53% to 5.41% | 2021 - 2030 | 2,148,351 | 333,351 | ||||||||
Total fixed rate debt | 4,542,982 | 2,199,710 | ||||||||||
Variable rate debt (1): | ||||||||||||
Unsecured revolving credit facilities(2) | 3.54% to 3.61% | 2020 - 2022 | 795,000 | 580,000 | ||||||||
Commercial paper | 3.19% | 2019 | 775,488 | — | ||||||||
USD unsecured term loan | 2.92% to 6.52% | 2019 - 2028 | 4,005,848 | 4,079,670 | ||||||||
Euro unsecured term loan | 1.15% to 1.58% | 2021 - 2028 | 734,176 | 814,085 | ||||||||
Total variable rate debt | 6,310,512 | 5,473,755 | ||||||||||
Capital lease obligations | 130,944 | 33,139 | ||||||||||
Total debt (3) | 10,984,438 | 7,706,604 | ||||||||||
Less: unamortized debt issuance costs | (206,739 | ) | (167,153 | ) | ||||||||
Total debt, net of unamortized debt issuance costs | 10,777,699 | 7,539,451 | ||||||||||
Less—current portion including commercial paper | (2,422,329 | ) | (1,188,514 | ) | ||||||||
Long-term portion | $ | 8,355,370 | $ | 6,350,937 |
(1) | Calculation based on outstanding loan balance and interest rate as of December 31, 2018. For variable rate debt, interest rate includes either LIBOR or EURIBOR plus the applicable margin. |
(2) | Includes $1.4 billion facility due in 2020 and $1.2 billion due in 2022, each of which accrue interest at LIBOR plus 1.10%, currently 3.91%, and are subject to a facility fee of 0.15%. |
(3) | At December 31, 2018 and 2017, the weighted average interest rate for total debt was 4.14% and 3.92%, respectively. |
Year | |||
2019 | $ | 2,422,329 | |
2020 | 1,681,978 | ||
2021 | 843,976 | ||
2022 | 1,607,975 | ||
2023 | 664,025 | ||
Thereafter | 3,557,416 | ||
$ | 10,777,699 |
Balance as at January 1, 2018 | $ | — | |
Additions (Silversea Cruises acquisition) | 537,770 | ||
Net income attributable to noncontrolling interest, including the contractual accretion of the put options | 4,750 | ||
Other | (500 | ) | |
Balance at December 31, 2018 | $ | 542,020 |
Employee Stock-Based Compensation | |||||||||||
Classification of expense | 2018 | 2017 | 2016 | ||||||||
Marketing, selling and administrative expenses | $ | 46,061 | $ | 69,459 | $ | 32,659 | |||||
Total compensation expense | $ | 46,061 | $ | 69,459 | $ | 32,659 |
Stock Option Activity | Number of Options | Weighted- Average Exercise Price | Weighted- Average Remaining Contractual Term | Aggregate Intrinsic Value(1) | ||||||||
(years) | (in thousands) | |||||||||||
Outstanding at January 1, 2018 | 272,724 | $ | 32.15 | 1.41 | $ | 24,053 | ||||||
Granted | — | — | ||||||||||
Exercised | (117,977 | ) | $ | 36.14 | ||||||||
Canceled | (1,654 | ) | $ | 32.49 | ||||||||
Outstanding at December 31, 2018 | 153,093 | $ | 29.06 | 1.23 | $ | 10,399 | ||||||
Vested at December 31, 2018 | 153,093 | $ | 29.06 | 1.23 | $ | 10,399 | ||||||
Options Exercisable at December 31, 2018 | 153,093 | $ | 29.06 | 1.23 | $ | 10,399 |
(1) | The intrinsic value represents the amount by which the fair value of stock exceeds the option exercise price. |
Restricted Stock Units Activity | Number of Awards | Weighted- Average Grant Date Fair Value | ||||
Non-vested share units as of January 1, 2018 | 737,899 | $ | 83.78 | |||
Granted | 392,427 | $ | 122.12 | |||
Vested | (276,059 | ) | $ | 78.09 | ||
Canceled | (53,682 | ) | $ | 101.82 | ||
Non-vested share units as of December 31, 2018 | 800,585 | $ | 103.32 |
Performance Share Units Activity | Number of Awards | Weighted- Average Grant Date Fair Value | ||||
Non-vested share units as of January 1, 2018 | 353,150 | $ | 74.87 | |||
Granted | 184,550 | $ | 97.98 | |||
Vested | (218,568 | ) | $ | 72.79 | ||
Canceled | (16,571 | ) | $ | 109.46 | ||
Non-vested share units as of December 31, 2018 | 302,561 | $ | 88.57 |
Restricted Stock Awards Activity | Number of Awards | Weighted- Average Grant Date Fair Value | ||||
Non-vested share units as of January 1, 2018 | 270,176 | $ | 81.28 | |||
Granted | 120,022 | $ | 129.23 | |||
Vested | — | — | ||||
Canceled | — | — | ||||
Non-vested share units as of December 31, 2018 | 390,198 | $ | 96.03 |
Year Ended December 31, | |||||||||||
2018 | 2017 | 2016 | |||||||||
Net Income attributable to Royal Caribbean Cruises Ltd. for basic and diluted earnings per share | $ | 1,811,042 | $ | 1,625,133 | $ | 1,283,388 | |||||
Weighted-average common shares outstanding | 210,570 | 214,617 | 215,393 | ||||||||
Dilutive effect of stock-based awards | 984 | 1,077 | 923 | ||||||||
Diluted weighted-average shares outstanding | 211,554 | 215,694 | 216,316 | ||||||||
Basic earnings per share | $ | 8.60 | $ | 7.57 | $ | 5.96 | |||||
Diluted earnings per share | $ | 8.56 | $ | 7.53 | $ | 5.93 |
Changes related to cash flow derivative hedges | Changes in defined benefit plans | Foreign currency translation adjustments | Accumulated other comprehensive (loss) income | |||||||||||||
Accumulated comprehensive loss at January 1, 2016 | $ | (1,232,073 | ) | $ | (26,447 | ) | $ | (69,913 | ) | $ | (1,328,433 | ) | ||||
Other comprehensive income (loss) before reclassifications | 73,973 | (2,777 | ) | 2,362 | 73,558 | |||||||||||
Amounts reclassified from accumulated other comprehensive loss | 337,250 | 1,141 | — | 338,391 | ||||||||||||
Net current-period other comprehensive income (loss) | 411,223 | (1,636 | ) | 2,362 | 411,949 | |||||||||||
Accumulated comprehensive loss at January 1, 2017 | (820,850 | ) | (28,083 | ) | (67,551 | ) | (916,484 | ) | ||||||||
Other comprehensive income (loss) before reclassifications | 381,865 | (6,755 | ) | 17,307 | 392,417 | |||||||||||
Amounts reclassified from accumulated other comprehensive loss | 188,630 | 1,172 | — | 189,802 | ||||||||||||
Net current-period other comprehensive income (loss) | 570,495 | (5,583 | ) | 17,307 | 582,219 | |||||||||||
Accumulated comprehensive loss at January 1, 2018 | (250,355 | ) | (33,666 | ) | (50,244 | ) | (334,265 | ) | ||||||||
Other comprehensive (loss) income before reclassifications | (297,994 | ) | 6,156 | (14,251 | ) | (306,089 | ) | |||||||||
Amounts reclassified from accumulated other comprehensive loss | 11,133 | 1,487 | — | 12,620 | ||||||||||||
Net current-period other comprehensive (loss) income | (286,861 | ) | 7,643 | (14,251 | ) | (293,469 | ) | |||||||||
Accumulated comprehensive loss at December 31, 2018 | $ | (537,216 | ) | $ | (26,023 | ) | $ | (64,495 | ) | $ | (627,734 | ) |
Amount of Gain (Loss) Reclassified from Accumulated Other Comprehensive Loss into Income | ||||||||||||||
Details about Accumulated Other Comprehensive Loss Components | Year Ended December 31, 2018 | Year Ended December 31, 2017 | Year Ended December 31, 2016 | Affected Line Item in Statements of Comprehensive Income (Loss) | ||||||||||
Gain (loss) on cash flow derivative hedges: | ||||||||||||||
Interest rate swaps | (10,931 | ) | (31,603 | ) | (41,480 | ) | Interest expense, net of interest capitalized | |||||||
Foreign currency forward contracts | (12,843 | ) | (10,840 | ) | (8,114 | ) | Depreciation and amortization expenses | |||||||
Foreign currency forward contracts | 12,855 | (9,472 | ) | (14,342 | ) | Other income (expense) | ||||||||
Foreign currency forward contracts | — | — | (207 | ) | Other indirect operating expenses | |||||||||
Foreign currency collar options | — | (2,408 | ) | (2,408 | ) | Depreciation and amortization expenses | ||||||||
Fuel swaps | (1,580 | ) | 7,382 | 13,685 | Other income (expense) | |||||||||
Fuel swaps | 1,366 | (141,689 | ) | (284,384 | ) | Fuel | ||||||||
(11,133 | ) | (188,630 | ) | (337,250 | ) | |||||||||
Amortization of defined benefit plans: | ||||||||||||||
Actuarial loss | (1,487 | ) | (1,172 | ) | (1,141 | ) | Payroll and related | |||||||
(1,487 | ) | (1,172 | ) | (1,141 | ) | |||||||||
Total reclassifications for the period | $ | (12,620 | ) | $ | (189,802 | ) | $ | (338,391 | ) |
Fair Value Measurements at December 31, 2018 | Fair Value Measurements at December 31, 2017 | ||||||||||||||||||||||||||||||||||||||
Description | Total Carrying Amount | Total Fair Value | Level 1(1) | Level 2(2) | Level 3(3) | Total Carrying Amount | Total Fair Value | Level 1(1) | Level 2(2) | Level 3(3) | |||||||||||||||||||||||||||||
Assets: | |||||||||||||||||||||||||||||||||||||||
Cash and cash equivalents(4) | $ | 287,852 | $ | 287,852 | $ | 287,852 | — | — | $ | 120,112 | $ | 120,112 | $ | 120,112 | — | — | |||||||||||||||||||||||
Total Assets | $ | 287,852 | $ | 287,852 | $ | 287,852 | $ | — | $ | — | $ | 120,112 | $ | 120,112 | $ | 120,112 | $ | — | $ | — | |||||||||||||||||||
Liabilities: | |||||||||||||||||||||||||||||||||||||||
Long-term debt (including current portion of long-term debt)(5) | $ | 9,871,267 | $ | 10,244,214 | — | $ | 10,244,214 | — | $ | 7,506,312 | $ | 8,038,092 | — | $ | 8,038,092 | — | |||||||||||||||||||||||
Total Liabilities | $ | 9,871,267 | $ | 10,244,214 | $ | — | $ | 10,244,214 | $ | — | $ | 7,506,312 | $ | 8,038,092 | $ | — | $ | 8,038,092 | $ | — |
(1) | Inputs based on quoted prices (unadjusted) in active markets for identical assets or liabilities that we have the ability to access. Valuation of these items does not entail a significant amount of judgment. |
(2) | Inputs other than quoted prices included within Level 1 that are observable for the liability, either directly or indirectly. For unsecured revolving credit facilities and unsecured term loans, fair value is determined utilizing the income valuation approach. This valuation model takes into account the contract terms of our debt such as the debt maturity and the interest rate on the debt. The valuation model also takes into account the creditworthiness of the Company. |
(3) | Inputs that are unobservable. The Company did not use any Level 3 inputs as of December 31, 2018 and 2017. |
(4) | Consists of cash and marketable securities with original maturities of less than 90 days. |
(5) | Consists of unsecured revolving credit facilities, senior notes, senior debentures and term loans. These amounts do not include our capital lease obligations or commercial paper. |
Fair Value Measurements at December 31, 2018 | Fair Value Measurements at December 31, 2017 | ||||||||||||||||||||||||||||||
Description | Total Fair Value | Level 1(1) | Level 2(2) | Level 3(3) | Total Fair Value | Level 1(1) | Level 2(2) | Level 3(3) | |||||||||||||||||||||||
Assets: | |||||||||||||||||||||||||||||||
Derivative financial instruments(4) | $ | 65,297 | $ | — | $ | 65,297 | $ | — | $ | 320,385 | $ | — | $ | 320,385 | $ | — | |||||||||||||||
Investments(5) | — | — | — | — | 3,340 | 3,340 | — | — | |||||||||||||||||||||||
Total Assets | $ | 65,297 | $ | — | $ | 65,297 | $ | — | $ | 323,725 | $ | 3,340 | $ | 320,385 | $ | — | |||||||||||||||
Liabilities: | |||||||||||||||||||||||||||||||
Derivative financial instruments(6) | $ | 201,812 | $ | — | $ | 201,812 | $ | — | $ | 115,961 | $ | — | $ | 115,961 | $ | — | |||||||||||||||
Contingent consideration(7) | 44,000 | — | — | 44,000 | — | — | — | — | |||||||||||||||||||||||
Total Liabilities | $ | 245,812 | $ | — | $ | 201,812 | $ | 44,000 | $ | 115,961 | $ | — | $ | 115,961 | $ | — |
(1) | Inputs based on quoted prices (unadjusted) in active markets for identical assets or liabilities that we have the ability to access. Valuation of these items does not entail a significant amount of judgment. |
(2) | Inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly. For foreign currency forward contracts, interest rate swaps and fuel swaps, fair value is derived using valuation models that utilize the income valuation approach. These valuation models take into account the contract terms, such as maturity as well as other inputs, such as foreign exchange rates and curves, fuel types, fuel curves and interest rate yield curves. Derivative instrument fair values take into account the creditworthiness of the counterparty and the Company. |
(3) | Inputs that are unobservable. The Company did not use any Level 3 inputs as of December 31, 2017. |
(4) | Consists of foreign currency forward contracts, interest rate swaps and fuel swaps. Refer to the "Fair Value of Derivative Instruments" table for breakdown by instrument type. |
(5) | Consists of exchange-traded equity securities and mutual funds reported within Other assets in our consolidated balance sheets. |
(6) | Consists of foreign currency forward contracts, interest rate swaps and fuel swaps. Refer to the "Fair Value of Derivative Instruments" table for breakdown by instrument type. |
(7) | The contingent consideration related to the Silversea Cruises acquisition was estimated by applying a Monte-Carlo simulation method using our closing stock price along with significant inputs not observable in the market, including the probability of achieving the milestones and estimated future operating results. The Monte-Carlo simulation is a generally accepted statistical technique used to generate a defined number of valuation paths in order to develop a reasonable estimate of fair value. Refer to Note 3. Business Combination for further information on the Silversea Cruises acquisition. |
Gross Amounts not Offset in the Consolidated Balance Sheet that are Subject to Master Netting Agreements | ||||||||||||||||||||||||||||||||
As of December 31, 2018 | As of December 31, 2017 | |||||||||||||||||||||||||||||||
Gross Amount of Derivative Assets Presented in the Consolidated Balance Sheet | Gross Amount of Eligible Offsetting Recognized Derivative Liabilities | Cash Collateral Received | Net Amount of Derivative Assets | Gross Amount of Derivative Assets Presented in the Consolidated Balance Sheet | Gross Amount of Eligible Offsetting Recognized Derivative Assets | Cash Collateral Received | Net Amount of Derivative Assets | |||||||||||||||||||||||||
Derivatives subject to master netting agreements | $ | 65,297 | $ | (60,303 | ) | $ | — | $ | 4,994 | $ | 320,385 | $ | (104,751 | ) | $ | — | $ | 215,634 | ||||||||||||||
Total | $ | 65,297 | $ | (60,303 | ) | $ | — | $ | 4,994 | $ | 320,385 | $ | (104,751 | ) | $ | — | $ | 215,634 |
Gross Amounts not Offset in the Consolidated Balance Sheet that are Subject to Master Netting Agreements | ||||||||||||||||||||||||||||||||
As of December 31, 2018 | As of December 31, 2017 | |||||||||||||||||||||||||||||||
Gross Amount of Derivative Liabilities Presented in the Consolidated Balance Sheet | Gross Amount of Eligible Offsetting Recognized Derivative Assets | Cash Collateral Pledged | Net Amount of Derivative Liabilities | Gross Amount of Derivative Liabilities Presented in the Consolidated Balance Sheet | Gross Amount of Eligible Offsetting Recognized Derivative Liabilities | Cash Collateral Pledged | Net Amount of Derivative Liabilities | |||||||||||||||||||||||||
Derivatives subject to master netting agreements | $ | (201,812 | ) | $ | 60,303 | $ | — | $ | (141,509 | ) | $ | (115,961 | ) | $ | 104,751 | $ | — | $ | (11,210 | ) | ||||||||||||
Total | $ | (201,812 | ) | $ | 60,303 | $ | — | $ | (141,509 | ) | $ | (115,961 | ) | $ | 104,751 | $ | — | $ | (11,210 | ) |
Debt Instrument | Swap Notional as of December 31, 2018 (In thousands) | Maturity | Debt Fixed Rate | Swap Floating Rate: LIBOR plus | All-in Swap Floating Rate as of December 31, 2018 | ||
Oasis of the Seas term loan | $ | 105,000 | October 2021 | 5.41% | 3.87% | 6.63% | |
Unsecured senior notes | 650,000 | November 2022 | 5.25% | 3.63% | 6.25% | ||
$ | 755,000 |
Debt Instrument | Swap Notional as of December 31, 2018 (In thousands) | Maturity | Debt Floating Rate | All-in Swap Fixed Rate | |||
Celebrity Reflection term loan | $ | 327,250 | October 2024 | LIBOR plus | 0.40% | 2.85% | |
Quantum of the Seas term loan | 490,000 | October 2026 | LIBOR plus | 1.30% | 3.74% | ||
Anthem of the Seas term loan | 513,542 | April 2027 | LIBOR plus | 1.30% | 3.86% | ||
Ovation of the Seas term loan | 657,083 | April 2028 | LIBOR plus | 1.00% | 3.16% | ||
Harmony of the Seas term loan (1) | 627,660 | May 2028 | EURIBOR plus | 1.15% | 2.26% | ||
$ | 2,615,535 |
(1) | Interest rate swap agreements hedging the Euro-denominated term loan for Harmony of the Seas include a EURIBOR zero-floor matching the hedged debt EURIBOR zero-floor. Amount presented is based on the exchange rate as of December 31, 2018. |
Fuel Swap Agreements | |||||
As of December 31, 2018 | As of December 31, 2017 | ||||
(metric tons) | |||||
2018 | — | 673,700 | |||
2019 | 856,800 | 668,500 | |||
2020 | 830,500 | 531,200 | |||
2021 | 488,900 | 224,900 | |||
2022 | 322,900 | — |
Fuel Swap Agreements | |||||
As of December 31, 2018 | As of December 31, 2017 | ||||
(% hedged) | |||||
Projected fuel purchases for year: | |||||
2018 | — | 50 | % | ||
2019 | 58 | % | 46 | % | |
2020 | 54 | % | 36 | % | |
2021 | 28 | % | 14 | % | |
2022 | 19 | % | — |
Fair Value of Derivative Instruments | |||||||||||||||||||
Asset Derivatives | Liability Derivatives | ||||||||||||||||||
Balance Sheet Location | As of December 31, 2018 | As of December 31, 2017 | Balance Sheet Location | As of December 31, 2018 | As of December 31, 2017 | ||||||||||||||
Fair Value | Fair Value | Fair Value | Fair Value | ||||||||||||||||
Derivatives designated as hedging instruments under ASC 815-20(1) | |||||||||||||||||||
Interest rate swaps | Other assets | $ | 23,518 | $ | 7,330 | Other long-term liabilities | $ | 40,467 | $ | 46,509 | |||||||||
Foreign currency forward contracts | Derivative financial instruments | 4,044 | 68,352 | Derivative financial instruments | 39,665 | — | |||||||||||||
Foreign currency forward contracts | Other assets | 10,844 | 158,879 | Other long-term liabilities | 16,854 | 6,625 | |||||||||||||
Fuel swaps | Derivative financial instruments | 10,966 | 13,137 | Derivative financial instruments | 37,627 | 38,488 | |||||||||||||
Fuel swaps | Other assets | 9,204 | 51,265 | Other long-term liabilities | 65,182 | 13,411 | |||||||||||||
Total derivatives designated as hedging instruments under ASC 815-20 | 58,576 | 298,963 | 199,795 | 105,033 | |||||||||||||||
Derivatives not designated as hedging instruments under ASC 815-20 | |||||||||||||||||||
Foreign currency forward contracts | Derivative financial Instruments | 1,751 | 9,945 | Derivative financial instruments | 808 | 2,933 | |||||||||||||
Foreign currency forward contracts | Other assets | 1,579 | 2,793 | Other long-term liabilities | 833 | 1,139 | |||||||||||||
Fuel swaps | Derivative financial instruments | 2,804 | 7,886 | Derivative financial instruments | 376 | 6,043 | |||||||||||||
Fuel swaps | Other assets | 587 | 798 | Other long-term liabilities | — | 813 | |||||||||||||
Total derivatives not designated as hedging instruments under ASC 815-20 | 6,721 | 21,422 | 2,017 | 10,928 | |||||||||||||||
Total derivatives | $ | 65,297 | $ | 320,385 | $ | 201,812 | $ | 115,961 |
(1) | Accounting Standard Codification 815-20 "Derivatives and Hedging." |
Year Ended December 31, 2018 | Year Ended December 31, 2017 | |||||||||||||||||||||||||||||||||
Fuel Expense | Depreciation and Amortization Expenses | Interest Income (Expense) | Other Income (Expense) | Fuel Expense | Depreciation and Amortization Expenses | Interest Income (Expense) | Other Income (Expense) | |||||||||||||||||||||||||||
Total amounts of income and expense line items presented in the statement of financial performance in which the effects of fair value or cash flow hedges are recorded | $710,617 | $1,033,697 | $(300,872) | $ | 11,107 | $681,118 | $951,194 | $(269,881) | $ | (5,289 | ) | |||||||||||||||||||||||
The effects of fair value and cash flow hedging: | ||||||||||||||||||||||||||||||||||
Gain or (loss) on fair value hedging relationships in Subtopic 815-20 | ||||||||||||||||||||||||||||||||||
Interest contracts | ||||||||||||||||||||||||||||||||||
Hedged items | n/a | n/a | $ | 4,673 | — | n/a | n/a | — | $ | 6,065 | ||||||||||||||||||||||||
Derivatives designated as hedging instruments | n/a | n/a | $ | (8,854 | ) | — | n/a | n/a | $ | 3,007 | $ | (3,139 | ) | |||||||||||||||||||||
Gain or (loss) on cash flow hedging relationships in Subtopic 815-20 | ||||||||||||||||||||||||||||||||||
Interest contracts | ||||||||||||||||||||||||||||||||||
Amount of gain or (loss) reclassified from accumulated other comprehensive loss into income | n/a | n/a | $ | (10,931 | ) | n/a | n/a | n/a | $ | (31,603 | ) | n/a | ||||||||||||||||||||||
Commodity contracts | ||||||||||||||||||||||||||||||||||
Amount of gain or (loss) reclassified from accumulated other comprehensive loss into income | $ | 1,366 | n/a | n/a | $ | (1,580 | ) | $ | (141,689 | ) | n/a | n/a | $ | 7,382 | ||||||||||||||||||||
Foreign exchange contracts | ||||||||||||||||||||||||||||||||||
Amount of gain or (loss) reclassified from accumulated other comprehensive loss into income | n/a | $ | (12,843 | ) | n/a | $ | 12,855 | n/a | $ | (13,248 | ) | n/a | $ | (9,472 | ) |
Year Ended December 31, 2016 | ||||||||||||||||||
Fuel Expense | Depreciation and Amortization Expenses | Interest Income (Expense) | Other Income (Expense) | |||||||||||||||
Total amounts of income and expense line items presented in the statement of financial performance in which the effects of fair value or cash flow hedges are recorded | $ | 713,676 | $ | 894,915 | $ | (286,514 | ) | $ | (35,653 | ) | ||||||||
The effects of fair value and cash flow hedging: | ||||||||||||||||||
Gain or (loss) on fair value hedging relationships in Subtopic 815-20 | ||||||||||||||||||
Interest contracts | ||||||||||||||||||
Hedged items | n/a | n/a | $ | 7,203 | $ | 5,072 | ||||||||||||
Derivatives designated as hedging instruments | n/a | n/a | $ | 7,488 | $ | (3,625 | ) | |||||||||||
Gain or (loss) on cash flow hedging relationships in Subtopic 815-20 | ||||||||||||||||||
Interest contracts | ||||||||||||||||||
Amount of gain or (loss) reclassified from accumulated other comprehensive loss into income | n/a | n/a | $ | (41,480 | ) | n/a | ||||||||||||
Commodity contracts | ||||||||||||||||||
Amount of gain or (loss) reclassified from accumulated other comprehensive loss into income | $ | (284,384 | ) | n/a | n/a | $ | 13,685 | |||||||||||
Foreign exchange contracts | ||||||||||||||||||
Amount of gain or (loss) reclassified from accumulated other comprehensive loss into income | n/a | $ | (10,522 | ) | n/a | $ | (14,342 | ) |
Carrying Value | ||||||||||
Non-derivative instrument designated as hedging instrument under ASC 815-20 | Balance Sheet Location | As of December 31, 2018 | As of December 31, 2017 | |||||||
Foreign currency debt | Current portion of long-term debt | $ | 38,168 | $ | 70,097 | |||||
Foreign currency debt | Long-term debt | 281,984 | 225,226 | |||||||
$ | 320,152 | $ | 295,323 |
Location of Gain (Loss) Recognized in Income on Derivative and Hedged Item | Amount of Gain (Loss) Recognized in Income on Derivative | Amount of Gain (Loss) Recognized in Income on Hedged Item | ||||||||||||||||||||||||
Derivatives and related Hedged Items under ASC 815-20 Fair Value Hedging Relationships | Year Ended December 31, 2018 | Year Ended December 31, 2017 | Year Ended December 31, 2016 | Year Ended December 31, 2018 | Year Ended December 31, 2017 | Year Ended December 31, 2016 | ||||||||||||||||||||
Interest rate swaps | Interest expense, net of interest capitalized | $ | (8,854 | ) | $ | 3,007 | $ | 7,488 | $ | 4,673 | $ | — | $ | 7,203 | ||||||||||||
Interest rate swaps | Other income (expense) | — | (3,139 | ) | (3,625 | ) | — | 6,065 | 5,072 | |||||||||||||||||
$ | (8,854 | ) | $ | (132 | ) | $ | 3,863 | $ | 4,673 | $ | 6,065 | $ | 12,275 |
Line Item in the Statement of Financial Position Where the Hedged Item is Included | Carrying Amount of the Hedged Liabilities | Cumulative amount of Fair Value Hedging Adjustment Included in the Carrying Amount of the Hedged Liabilities | ||||||||||||||
As of December 31, 2018 | As of December 31, 2017 | As of December 31, 2018 | As of December 31, 2017 | |||||||||||||
Current portion of long-term debt and Long-term debt | $ | 725,486 | $ | 749,155 | $ | (24,766 | ) | $ | (34,813 | ) | ||||||
$ | 725,486 | $ | 749,155 | $ | (24,766 | ) | $ | (34,813 | ) |
Amount of Gain (Loss) Recognized in Accumulated Other Comprehensive Income (Loss) on Derivative | Location of Gain (Loss) Reclassified from Accumulated Other Comprehensive Loss into Income | Amount of Gain (Loss) Reclassified from Accumulated Other Comprehensive Income into Income | ||||||||||||||||||||||||
Derivatives under ASC 815-20 Cash Flow Hedging Relationships | Year Ended December 31, 2018 | Year Ended December 31, 2017 | Year Ended December 31, 2016 | Year Ended December 31, 2018 | Year Ended December 31, 2017 | Year Ended December 31, 2016 | ||||||||||||||||||||
Interest rate swaps | $ | 18,578 | $ | (13,312 | ) | $ | (31,049 | ) | Interest expense | $ | (10,931 | ) | $ | (31,603 | ) | $ | (41,480 | ) | ||||||||
Foreign currency forward contracts | (222,645 | ) | 276,573 | (51,092 | ) | Depreciation and amortization expenses | (12,843 | ) | (10,840 | ) | (8,114 | ) | ||||||||||||||
Foreign currency forward contracts | — | — | — | Other income (expense) | 12,855 | (9,472 | ) | (14,342 | ) | |||||||||||||||||
Foreign currency forward contracts | — | — | — | Other indirect operating expenses | — | — | (207 | ) | ||||||||||||||||||
Foreign currency collar options | — | — | — | Depreciation and amortization expenses | — | (2,408 | ) | (2,408 | ) | |||||||||||||||||
Fuel swaps | — | — | — | Other income (expense) | (1,580 | ) | 7,382 | 13,685 | ||||||||||||||||||
Fuel swaps | (93,927 | ) | 118,604 | 156,139 | Fuel | 1,366 | (141,689 | ) | (284,384 | ) | ||||||||||||||||
$ | (297,994 | ) | $ | 381,865 | $ | 73,998 | $ | (11,133 | ) | $ | (188,630 | ) | $ | (337,250 | ) |
Gain (Loss) Recognized in Income (Net Investment Excluded Components) | Year Ended December 31, 2018 | |||
Net inception fair value at January 1, 2018 | $ | (11,335 | ) | |
Amount of gain recognized in income on derivatives for the year ended December 31, 2018 | 2,976 | |||
Amount of loss remaining to be amortized in accumulated other comprehensive loss as of December 31, 2018 | (1,339 | ) | ||
Fair value at December 31, 2018 | (9,698 | ) |
Amount of Gain (Loss) Recognized in Other Comprehensive Income (Loss) | |||||||||||||
Non-derivative instruments under ASC 815-20 Net Investment Hedging Relationships | Year Ended December 31, 2018 | Year Ended December 31, 2017 | Year Ended December 31, 2016 | ||||||||||
Foreign Currency Debt | $ | 13,210 | $ | (38,971 | ) | $ | 20,295 | ||||||
$ | 13,210 | $ | (38,971 | ) | $ | 20,295 |
Amount of Gain (Loss) Recognized in Income on Derivative | ||||||||||||||
Derivatives Not Designated as Hedging Instruments under ASC 815-20 | Location of Gain (Loss) Recognized in Income on Derivative | Year Ended December 31, 2018 | Year Ended December 31, 2017 | Year Ended December 31, 2016 | ||||||||||
Foreign currency forward contracts | Other income (expense) | $ | (62,423 | ) | $ | 61,952 | $ | (51,029 | ) | |||||
Fuel swaps | Fuel | 1,161 | — | — | ||||||||||
Fuel swaps | Other income (expense) | 114 | (1,133 | ) | (1,000 | ) | ||||||||
$ | (61,148 | ) | $ | 60,819 | $ | (52,029 | ) |
Year | |||
2019 | $ | 67,682 | |
2020 | 64,237 | ||
2021 | 56,142 | ||
2022 | 52,759 | ||
2023 | 52,522 | ||
Thereafter | 383,974 | ||
$ | 677,316 |
Year | |||
2019 | $ | 224,253 | |
2020 | 184,308 | ||
2021 | 136,917 | ||
2022 | 79,401 | ||
2023 | 45,266 | ||
Thereafter | 149,696 | ||
$ | 819,841 |
(In thousands, except per share data) | |||||||||||||||||||||||||||||||
First Quarter | Second Quarter | Third Quarter | Fourth Quarter | ||||||||||||||||||||||||||||
2018 | 2017 | 2018 | 2017 | 2018 | 2017 | 2018 | 2017 | ||||||||||||||||||||||||
Total revenues(1) | $ | 2,027,756 | $ | 2,008,560 | $ | 2,337,605 | $ | 2,195,274 | $ | 2,796,187 | $ | 2,569,544 | $ | 2,332,301 | $ | 2,004,467 | |||||||||||||||
Operating income | $ | 274,146 | $ | 279,522 | $ | 456,895 | $ | 419,697 | $ | 799,733 | $ | 737,488 | $ | 364,027 | $ | 307,349 | |||||||||||||||
Net Income attributable to Royal Caribbean Cruises Ltd. | $ | 218,653 | $ | 214,726 | $ | 466,295 | $ | 369,526 | $ | 810,391 | $ | 752,842 | $ | 315,703 | $ | 288,039 | |||||||||||||||
Earnings per share | |||||||||||||||||||||||||||||||
Basic | $ | 1.03 | $ | 1.00 | $ | 2.20 | $ | 1.72 | $ | 3.88 | $ | 3.51 | $ | 1.51 | $ | 1.35 | |||||||||||||||
Diluted | $ | 1.02 | $ | 0.99 | $ | 2.19 | $ | 1.71 | $ | 3.86 | $ | 3.49 | $ | 1.50 | $ | 1.34 | |||||||||||||||
Dividends declared per share | $ | 0.60 | $ | 0.480 | $ | 0.60 | $ | 0.480 | $ | 0.70 | $ | 0.60 | $ | 0.70 | $ | 0.60 |
(1) | Our revenues are seasonal based on the demand for cruises. Demand is strongest for cruises during the Northern Hemisphere's summer months and holidays. |
Exhibit 4.7
SILVERSEA CRUISE FINANCE LTD.,
as Issuer,
CITIBANK, N.A., LONDON BRANCH,
as Trustee, Principal Paying Agent, Transfer Agent and Security Agent,
and
CITIGROUP GLOBAL MARKETS DEUTSCHLAND AG,
as Registrar
INDENTURE
Dated as of January 30, 2017
7.250% SENIOR SECURED NOTES DUE 2025
TABLE OF CONTENTS
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Page |
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ARTICLE ONE | ||
DEFINITIONS AND INCORPORATION BY REFERENCE | ||
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SECTION 1.01. |
Definitions |
1 |
SECTION 1.02. |
Other Definitions |
27 |
SECTION 1.03. |
Rules of Construction |
28 |
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ARTICLE TWO | ||
THE NOTES | ||
| ||
SECTION 2.01. |
The Notes |
28 |
SECTION 2.02. |
Execution and Authentication |
29 |
SECTION 2.03. |
Registrar, Transfer Agent and Paying Agent |
30 |
SECTION 2.04. |
Paying Agent to Hold Money |
30 |
SECTION 2.05. |
Holder Lists |
31 |
SECTION 2.06. |
Transfer and Exchange |
31 |
SECTION 2.07. |
Replacement Notes |
33 |
SECTION 2.08. |
Outstanding Notes |
33 |
SECTION 2.09. |
Notes Held by Issuer |
33 |
SECTION 2.10. |
Definitive Registered Notes |
34 |
SECTION 2.11. |
Cancellation |
34 |
SECTION 2.12. |
Defaulted Interest |
34 |
SECTION 2.13. |
Computation of Interest |
35 |
SECTION 2.14. |
ISIN and CUSIP Numbers |
35 |
SECTION 2.15. |
Issuance of Additional Notes |
35 |
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ARTICLE THREE | ||
REDEMPTION; OFFERS TO PURCHASE | ||
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SECTION 3.01. |
Right of Redemption |
35 |
SECTION 3.02. |
Notices to Trustee |
35 |
SECTION 3.03. |
Selection of Notes to Be Redeemed |
35 |
SECTION 3.04. |
Notice of Redemption |
36 |
SECTION 3.05. |
Deposit of Redemption Price |
37 |
SECTION 3.06. |
Special Mandatory Redemption |
37 |
SECTION 3.07. |
Payment of Notes Called for Redemption |
37 |
SECTION 3.08. |
Notes Redeemed in Part |
38 |
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ARTICLE FOUR | ||
COVENANTS | ||
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SECTION 4.01. |
Payment of Notes |
38 |
SECTION 4.02. |
Corporate Existence |
38 |
SECTION 4.03. |
Maintenance of Properties |
38 |
SECTION 4.04. |
Insurance |
38 |
SECTION 4.05. |
Statement as to Compliance |
39 |
SECTION 4.06. |
Incurrence of Indebtedness and Issuance of Preferred Stock |
39 |
SECTION 4.07. |
Liens |
44 |
SECTION 4.08. |
Restricted Payments |
44 |
SECTION 4.09. |
Asset Sales |
47 |
SECTION 4.10. |
Transactions with Affiliates |
49 |
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Page |
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SECTION 4.11. |
Purchase of Notes upon a Change of Control |
51 |
SECTION 4.12. |
Additional Amounts |
52 |
SECTION 4.13. |
Additional Intercreditor Agreements and Amendments to the Intercreditor Agreement |
54 |
SECTION 4.14. |
Note Guarantees and Security Interests |
55 |
SECTION 4.15. |
Limitation on Issuance of Guarantees of Indebtedness |
56 |
SECTION 4.16. |
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries |
57 |
SECTION 4.17. |
Designation of Restricted and Unrestricted Subsidiaries |
59 |
SECTION 4.18. |
Payment of Taxes and Other Claims |
59 |
SECTION 4.19. |
Reports to Holders |
59 |
SECTION 4.20. |
Further Assurances |
61 |
SECTION 4.21. |
[Reserved] |
61 |
SECTION 4.22. |
Impairment of Security Interest |
61 |
SECTION 4.23. |
After-Acquired Property |
62 |
SECTION 4.24. |
Limitation on Sale and Leaseback Transactions |
62 |
SECTION 4.25. |
Payments for Consent |
62 |
SECTION 4.26. |
Maintenance of Listing |
63 |
SECTION 4.27. |
Business Activities |
63 |
SECTION 4.28. |
Re-flagging of Vessels |
63 |
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|
ARTICLE FIVE | ||
MERGER, CONSOLIDATION OR SALE OF ASSETS | ||
| ||
SECTION 5.01. |
Merger, Consolidation or Sale of Assets |
63 |
SECTION 5.02. |
Successor Substituted |
65 |
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ARTICLE SIX | ||
DEFAULTS AND REMEDIES | ||
| ||
SECTION 6.01. |
Events of Default |
65 |
SECTION 6.02. |
Acceleration |
67 |
SECTION 6.03. |
Other Remedies |
68 |
SECTION 6.04. |
Waiver of Past Defaults |
68 |
SECTION 6.05. |
Control by Majority |
69 |
SECTION 6.06. |
Limitation on Suits |
69 |
SECTION 6.07. |
Unconditional Right of Holders to Bring Suit for Payment |
69 |
SECTION 6.08. |
Collection Suit by Trustee |
69 |
SECTION 6.09. |
Trustee May File Proofs of Claim |
70 |
SECTION 6.10. |
Application of Money Collected |
70 |
SECTION 6.11. |
Undertaking for Costs |
71 |
SECTION 6.12. |
Restoration of Rights and Remedies |
71 |
SECTION 6.13. |
Rights and Remedies Cumulative |
71 |
SECTION 6.14. |
Delay or Omission Not Waiver |
71 |
SECTION 6.15. |
Record Date |
71 |
SECTION 6.16. |
Waiver of Stay or Extension Laws |
71 |
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ARTICLE SEVEN | ||
TRUSTEE AND SECURITY AGENT | ||
| ||
SECTION 7.01. |
Duties of Trustee and the Security Agent |
71 |
SECTION 7.02. |
Certain Rights of Trustee and the Security Agent |
72 |
SECTION 7.03. |
Individual Rights of Trustee and the Security Agent |
76 |
SECTION 7.04. |
Disclaimer of Trustee and Security Agent |
76 |
SECTION 7.05. |
Compensation and Indemnity |
76 |
SECTION 7.06. |
Replacement of Trustee or Security Agent |
77 |
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Page |
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SECTION 7.07. |
Successor Trustee or Security Agent by Merger |
78 |
SECTION 7.08. |
Appointment of Security Agent and Supplemental Security Agents |
78 |
SECTION 7.09. |
Eligibility; Disqualification |
79 |
SECTION 7.10. |
Appointment of Co-Trustee |
80 |
SECTION 7.11. |
Resignation of Agents |
80 |
SECTION 7.12. |
Agents General Provisions |
81 |
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ARTICLE EIGHT | ||
DEFEASANCE; SATISFACTION AND DISCHARGE | ||
| ||
SECTION 8.01. |
Issuers Option to Effect Defeasance or Covenant Defeasance |
82 |
SECTION 8.02. |
Defeasance and Discharge |
82 |
SECTION 8.03. |
Covenant Defeasance |
83 |
SECTION 8.04. |
Conditions to Defeasance |
83 |
SECTION 8.05. |
Satisfaction and Discharge of Indenture |
84 |
SECTION 8.06. |
Survival of Certain Obligations |
85 |
SECTION 8.07. |
Acknowledgment of Discharge by Trustee |
85 |
SECTION 8.08. |
Application of Trust Money |
85 |
SECTION 8.09. |
Repayment to Issuer |
85 |
SECTION 8.10. |
Indemnity for Government Securities |
85 |
SECTION 8.11. |
Reinstatement |
85 |
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ARTICLE NINE | ||
AMENDMENTS AND WAIVERS | ||
| ||
SECTION 9.01. |
Without Consent of Holders |
86 |
SECTION 9.02. |
With Consent of Holders |
87 |
SECTION 9.03. |
Effect of Supplemental Indentures |
88 |
SECTION 9.04. |
Notation on or Exchange of Notes |
88 |
SECTION 9.05. |
[Reserved] |
88 |
SECTION 9.06. |
Notice of Amendment or Waiver |
88 |
SECTION 9.07. |
Trustee to Sign Amendments, Etc. |
88 |
SECTION 9.08. |
Additional Voting Terms; Calculation of Principal Amount |
88 |
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ARTICLE TEN | ||
GUARANTEE | ||
| ||
SECTION 10.01. |
Note Guarantees |
89 |
SECTION 10.02. |
Subrogation |
89 |
SECTION 10.03. |
Release of Note Guarantees |
90 |
SECTION 10.04. |
Limitation and Effectiveness of Note Guarantees |
90 |
SECTION 10.05. |
Notation Not Required |
90 |
SECTION 10.06. |
Successors and Assigns |
91 |
SECTION 10.07. |
No Waiver |
91 |
SECTION 10.08. |
Modification |
91 |
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ARTICLE ELEVEN | ||
SECURITY | ||
| ||
SECTION 11.01. |
Security; Security Documents |
91 |
SECTION 11.02. |
Authorization of Actions to Be Taken by the Security Agent Under the Security Documents |
92 |
SECTION 11.03. |
Authorization of Receipt of Funds by the Security Agent Under the Security Documents |
92 |
SECTION 11.04. |
Release of the Collateral |
93 |
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Page |
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ARTICLE TWELVE | ||
MISCELLANEOUS | ||
| ||
SECTION 12.01. |
Notices |
94 |
SECTION 12.02. |
Certificate and Opinion as to Conditions Precedent |
95 |
SECTION 12.03. |
Statements Required in Certificate or Opinion |
96 |
SECTION 12.04. |
Rules by Trustee, Paying Agent and Registrar |
96 |
SECTION 12.05. |
No Personal Liability of Directors, Officers, Employees and Stockholders |
96 |
SECTION 12.06. |
Legal Holidays |
96 |
SECTION 12.07. |
Governing Law |
96 |
SECTION 12.08. |
Jurisdiction |
96 |
SECTION 12.09. |
No Recourse Against Others |
97 |
SECTION 12.10. |
Successors |
97 |
SECTION 12.11. |
Counterparts |
97 |
SECTION 12.12. |
Table of Contents, Cross-Reference Sheet and Headings |
97 |
SECTION 12.13. |
Severability |
97 |
SECTION 12.14. |
Currency Indemnity |
97 |
Schedules
Schedule I |
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Subsidiary Guarantors |
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Schedule II |
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Security Documents |
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Schedule III |
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Agreed Security Principles |
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Schedule IV |
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Guarantee Limitations |
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Exhibits |
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Exhibit A |
Form of Note |
| |
Exhibit B |
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Form of Transfer Certificate for Transfer from Restricted Global Note to Regulation S Global Note | |
Exhibit C |
|
Form of Transfer Certificate for Transfer from Regulation S Global Note to Restricted Global Note | |
Exhibit D |
Form of Supplemental Indenture |
INDENTURE dated as of January 30, 2017 among Silversea Cruise Finance Ltd., a limited liability company incorporated under the laws of the Commonwealth of The Bahamas (the Issuer), Citibank, N.A., London Branch, as trustee (in such capacity, the Trustee), as Principal Paying Agent, as Transfer Agent and as Security Agent, and Citigroup Global Markets Deutschland AG, as Registrar.
RECITALS
The Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance of its 7.250% Senior Secured Notes due 2025 issued on the date hereof (the Original Notes) and any additional senior secured notes (the Additional Notes) that may be issued after the Issue Date in compliance with this Indenture. The Original Notes and the Additional Notes together are referred to herein as the Notes. The Issuer has received good and valuable consideration for the execution and delivery of this Indenture. All necessary acts and things have been done to make (i) the Notes, when duly issued and executed by the Issuer and authenticated and delivered hereunder, the legal, valid and binding obligations of the Issuer and (ii) this Indenture a legal, valid and binding agreement of the Issuer in accordance with the terms of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders, as follows:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
Acquired Debt means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming, a Restricted Subsidiary; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
Affiliate of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, control, as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms controlling, controlled by and under common control with have correlative meanings.
After-Acquired Property means any property of the Issuer or any Guarantor acquired after the Issue Date, with respect to property of the Issuer, or the First Escrow Release Date, with respect to property of a Guarantor (including, but not limited to, any Vessel which replaces a Vessel that was the subject of an Event of Loss) that is of the same type as any of the Issuers or such Guarantors assets that were intended to be a part of the Collateral as of the Issue Date or the First Escrow Release Date (subject, in each case, to any time periods to put the applicable security arrangements in place as permitted by this Indenture), as applicable; provided that any (i) Vessel, (ii) Related Vessel Property or (iii) Capital Stock of a Vessel Holding Company subject to a lien in connection with any Indebtedness permitted to be incurred and to be secured by a lien on such Vessel, Related Vessel Property or Capital Stock shall not constitute After-Acquired Property until such Indebtedness has been repaid in full or otherwise terminated.
Agreed Security Principles means the Agreed Security Principles as set forth on Schedule III hereto.
Applicable Law means any competent regulatory, prosecuting, Tax or governmental authority in any jurisdiction.
Appraised Market Value means the value of any Vessel as may be determined from time to time based upon a valuation that shall be addressed to the Security Agent and the Trustee and shall be prepared:
(1) with or without a physical inspection of the Vessel and expressed in U.S. dollars on the basis of a sale for prompt delivery, charter-free, at arms-length between a willing seller and a willing buyer;
(2) by any Approved Shipbroker;
(3) without interrupting the operation or trading of the Vessel; and
(4) not earlier than six months prior to (i) the date of creation, incurrence or assumption of the related Permitted Collateral Lien pursuant to clause (B), (C) or (F) of the definition thereof or (ii) the date of the incurrence of the relevant Indebtedness (as the case may be)
and the Appraised Market Value shall be the value as stated in such valuation, except that:
(a) other than for the purposes of entering into a French Tax Lease, if the Vessel is subject to a mortgage under which the amount recoverable is restricted to a registered maximum mortgage amount, the market value of the Vessel shall be restricted to that mortgage amount if the valuation otherwise determined under this definition would be higher; and
(b) if the Vessel becomes subject to an Event of Loss but the proceeds of the insurances in respect of that Event of Loss have not yet been applied in accordance with this Indenture, the Vessel shall be deemed to have a market value equal to its insured value or, if lower, such amount as the Security Agent determines is reasonably expected to be received from the Vessels insurers in respect of the Event of Loss.
For the avoidance of doubt, the Appraised Market Value of any Vessel whose most recent valuation occurred earlier than six months prior to (i) the date of creation, incurrence or assumption of the related Permitted Collateral Lien or (ii) the date of the incurrence of the relevant Indebtedness (as the case may be) shall be deemed to be zero.
Approved Shipbrokers means Barry Rogliano Salles, Harpain Shipping, Jaegar or such other internationally recognized shipbrokers of similar standing as may from time to time be selected by the Parent Guarantor for the purposes of determining a Vessels Appraised Market Value.
Asset Sale means:
(1) the sale, lease, conveyance or other disposition of any assets by the Parent Guarantor or any of its Restricted Subsidiaries; provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Parent Guarantor and its Restricted Subsidiaries taken as a whole will be governed by Section 4.11 and/or Article Five and not by Section 4.09; and
(2) the issuance of Equity Interests by any Restricted Subsidiary or the sale by the Parent Guarantor or any of its Restricted Subsidiaries of Equity Interests in any of the Restricted Subsidiaries (in each case, other than directors qualifying shares and shares to be held by third parties to meet the applicable legal requirements).
Notwithstanding the preceding provisions, none of the following items will be deemed to be an Asset Sale:
(1) any single transaction or series of related transactions that involves assets or Equity Interests having a Fair Market Value of less than $5.0 million;
(2) a sale, lease, conveyance or other disposition of assets or Equity Interests between or among the Parent Guarantor and any Restricted Subsidiary;
(3) an issuance of Equity Interests by a Restricted Subsidiary to the Parent Guarantor or to a Restricted Subsidiary;
(4) the sale, lease, conveyance or other disposition of inventory, insurance proceeds or other assets in the ordinary course of business and any sale or other disposition of damaged, worn-out or obsolete assets or assets that are no longer useful in the conduct of the business of the Parent Guarantor and its Restricted Subsidiaries;
(5) licenses and sublicenses by the Parent Guarantor or any of its Restricted Subsidiaries in the ordinary course of business;
(6) any surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims in the ordinary course of business;
(7) any transfer, assignment or other disposition deemed to occur in connection with the creation or granting of Liens not prohibited under Section 4.07;
(8) the sale or other disposition of cash or Cash Equivalents;
(9) a Restricted Payment that does not violate Section 4.08 or a Permitted Investment;
(10) the disposition of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(11) the foreclosure, condemnation or any similar action with respect to any property or other assets or a surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind;
(12) the sale of any property in a sale and leaseback transaction that complies with Section 4.24 that is entered into within six months of the acquisition of such property or completion of the construction of the applicable Vessel;
(13) time charters and other similar arrangements in the ordinary course of business;
(14) any Event of Loss; and
(15) any French Tax Lease.
Attributable Debt means, with respect to any sale and leaseback transaction, including any French Tax Lease, at the time of determination, the present value (discounted at the interest rate reasonably determined in good faith by a responsible financial or accounting officer of the Parent Guarantor to be the interest rate implicit in the lease determined in accordance with IFRS, or, if not known, at the Parent Guarantors incremental borrowing rate) of the total obligations of the lessee of the property subject to such lease for rental payments during the remaining term of the lease included in such sale and leaseback transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended, or until the earliest date on which the lessee may terminate such lease without penalty or upon payment of penalty (in which case the rental payments shall include such penalty), after excluding from such rental payments all amounts required to be paid on account of maintenance and repairs, insurance, taxes, assessments, water, utilities and similar charges; provided, however, that if such sale and leaseback transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of Capital Lease Obligation.
Authority means any competent regulatory, prosecuting, Tax or governmental authority in any jurisdiction.
Bankruptcy Law means Title 11 of the United States Code, as amended, or any similar U.S. federal or state law or the laws of any other jurisdiction (or any political subdivision thereof) relating to bankruptcy, insolvency, voluntary or judicial liquidation, composition with creditors, reprieve from payment, controlled management, fraudulent conveyance, general settlement with creditors, reorganization or similar or equivalent laws affecting the rights of creditors generally.
Beneficial Owner has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular person (as that term is used in Section 13(d)(3) of the Exchange Act), such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms Beneficially Owns and Beneficially Owned have a corresponding meaning.
Board of Directors means:
(1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;
(2) with respect to a partnership, the board of directors of the general partner of the partnership;
(3) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a similar function.
Book-Entry Interest means a beneficial interest in a Global Note held through and shown on, and transferred only through, records maintained in book-entry form by DTC and its nominees and successors.
Business Day means a day other than a Saturday, Sunday or other day on which banking institutions in New York or a place of payment under this Indenture are authorized or required by law, regulation or executive order to close.
Calculation Date has the meaning assigned to such term in the definition of Fixed Charge Coverage Ratio.
Capital Lease Obligation means, with respect to any Person, any obligation of such Person under a lease of (or other agreement conveying the right to use) any property (whether real, personal or mixed), which obligation is required to be classified and accounted for as a capital lease obligation under IFRS, and, for purposes of this Indenture, the amount of such obligation at any date will be the capitalized amount thereof at such date, determined in accordance with IFRS and the Stated Maturity thereof will be the date of last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty.
Capital Stock means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
Cash Equivalents means:
(1) direct obligations (or certificates representing an interest in such obligations) issued by, or unconditionally guaranteed by, the government of a member state of the European Union, the United States of America, Switzerland or Canada (including, in each case, any agency or instrumentality thereof), as the case may be, the payment of which is backed by the full faith and credit of the relevant member state of the European Union or the United States of America, Switzerland or Canada, as the case may be, and which are not callable or redeemable at the Parent Guarantors option;
(2) overnight bank deposits, time deposit accounts, certificates of deposit, bankers acceptances and money market deposits (and similar instruments) with maturities of 12 months or less from the date of acquisition issued by a bank or trust company which is organized under, or authorized to operate as a bank or trust company under, the laws of a member state of the European Union or of the United States of America or any state thereof, Switzerland, the United Kingdom, Australia or Canada; provided that such bank or trust company has capital, surplus and undivided profits aggregating in excess of $250.0 million (or the foreign currency equivalent thereof as of the date of such investment) and whose long-term debt is rated A-1 or higher by Moodys or A+ or higher by S&P or the equivalent rating category of another internationally recognized rating agency; provided, further, that any cash held pursuant to clause (6) below not covered by the foregoing may be held through overnight bank deposits, time deposit accounts, certificates of deposit, bankers acceptances and money market deposits (and similar instruments) with maturities of 12 months or less from the date of acquisition issued by a bank or trust company organized and operating in the applicable jurisdiction;
(3) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (1) and (2) above entered into with any financial institution meeting the qualifications specified in clause (2) above;
(4) commercial paper having one of the two highest ratings obtainable from Moodys or S&P and, in each case, maturing within one year after the date of acquisition;
(5) money market funds or other mutual funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (4) above; and
(6) cash in any currency in which the Parent Guarantor and its subsidiaries now or in the future operate, in such amounts as the Parent Guarantor determines to be necessary in the ordinary course of their business.
Change of Control means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Parent Guarantor and its Restricted Subsidiaries taken as a whole to any Person (including any person (as that term is used in Section 13(d)(3) of the Exchange Act)) other than the Principal or a Related Party of the Principal;
(2) the adoption of a plan relating to the liquidation or dissolution of the Parent Guarantor;
(3) the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any Person (including any person as defined above), other than the Principal or a Related Party of the Principal, becomes the Beneficial Owner, directly or indirectly, of 50% or more of the issued and outstanding Voting Stock of the Parent Guarantor measured by voting power rather than number of shares; or
(4) the Parent Guarantor ceases to Beneficially Own, directly or indirectly, 100% of the Voting Stock of the Issuer, other than directors qualifying shares and other shares required to be issued by law.
Clearstream means Clearstream Banking, société anonyme.
Code means the Internal Revenue Code of 1986, as amended.
Collateral means the following:
(i) shares of capital stock of the Issuer, Silversea Cruises Ltd., Silversea Cruises (UK) Limited, Silversea Cruises (Europe) Limited, Silver Cloud Shipping Co. Ltd., Silver Wind Shipping Ltd., Silver Shadow Shipping Co. Ltd., Silver Spirit Shipping Co., Ltd., Silversea New Build Six Ltd., SG Expeditions Cyprus Ltd., SG Expeditions SAGL, SG Cruises GmbH and Canodros C.L.;
(ii) mortgages over the following Vessels owned by the Guarantors: Silver Cloud, Silver Wind, Silver Shadow, Silver Spirit, Silver Galapagos and Silver Muse and, in each case, an assignment of insurance claims and earnings in respect of such Vessels, and with respect to certain of the foregoing Vessels, the related intra-group charter agreement and other relevant contacts;
(iii) assets to be pledged by the Issuer, the Parent Guarantor, Silversea Cruises Limited, Sil-versea Cruises (Europe) Limited, Silversea Cruises (UK) Limited, Silver Cloud Shipping Co. Ltd., Silver Wind Shipping Ltd., Silver Shadow Shipping Co. Ltd., Silver Spirit Shipping Co., Ltd. and Silversea New Build Six Ltd. in each case pursuant to an all assets debenture;
(iv) a charge over certain bank accounts of the Issuer, Silversea Cruises Ltd., SG Expeditions SAGL and SG Cruises GmbH;
(v) trade receivables and intercompany receivables pledged pursuant to the Security Documents owing to any Guarantor or the Issuer by any of the Issuer or any Guarantor; and
(vi) any additional assets that are pledged for the benefit of the holders of the Notes, the lenders under the Revolving Credit Facility and certain hedge counterparties.
Collateral Vessel means each of the Silver Cloud, the Silver Wind, the Silver Shadow, the Silver Spirit, the Silver Galapagos and the Silver Muse.
Commission means the U.S. Securities and Exchange Commission.
Consolidated EBITDA means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus the following to the extent deducted in calculating such Consolidated Net Income, without duplication:
(1) provision for taxes based on income or profits of such Person and its Subsidiaries which are Restricted Subsidiaries for such period; plus
(2) the Consolidated Interest Expense of such Person and its Subsidiaries which are Restricted Subsidiaries for such period; plus
(3) depreciation, amortization (including amortization of intangibles and deferred financing fees but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash charges and expenses (excluding any such non-cash charge or expense to the extent that it represents an accrual of or reserve for cash charges or expenses in any future period or amortization of a prepaid cash charge or expense that was paid in a prior period) of such Person and its Subsidiaries which are Restricted Subsidiaries for such period; plus
(4) any expenses, charges or other costs related to any Equity Offering or issuance of Subordinated Shareholder Funding permitted by this Indenture or relating to the offering of the Notes, in each case, as determined in good faith by the Parent Guarantor; plus
(5) the amount of any management, monitoring, consulting and advisory fees and related expenses paid in such period to consultants and advisors; plus
(6) any costs or expense incurred pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expense are funded with cash proceeds contributed to the capital of the Parent Guarantor or net cash proceeds of an issuance of Equity Interest of the Parent Guarantor (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation set forth in Section 4.08(a)(iii)(B); plus
(7) the amount of any minority interest expense consisting of subsidiary income attributable to minority equity interests of third parties in any non-wholly owned Restricted Subsidiary in such period or any prior period, except to the extent of dividends declared or paid on, or other cash payments in respect of, Equity Interests held by such parties; minus
(8) non-cash items increasing such Consolidated Net Income for such period (other than any non-cash items increasing such Consolidated Net Income pursuant to clauses (1) through (14) of the definition of Consolidated Net Income), other than the reversal of a reserve for cash charges in a future period in the ordinary course of business;
in each case, on a consolidated basis and determined in accordance with IFRS.
Consolidated Interest Expense means, with respect to any specified Person for any period, the sum, without duplication, of:
(1) the consolidated interest expense (net of interest income) of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, including, without limitation, amortization of debt discount (but not debt issuance costs);
(2) non-cash interest payments;
(3) the interest component of deferred payment obligations;
(4) the interest component of all payments associated with Capital Lease Obligations;
(5) commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers acceptance financings, net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates;
(6) the consolidated interest expense of such Person and its Subsidiaries which are Restricted Subsidiaries that was capitalized during such period;
(7) any interest on Indebtedness of another Person that is guaranteed by such Person or one of its Subsidiaries which are Restricted Subsidiaries or is secured by a Lien on assets of such Person or one of its Subsidiaries which are Restricted Subsidiaries; and
(8) the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of preferred stock of any Restricted Subsidiary, other than dividends on Equity Interests payable to the Parent Guarantor or a Restricted Subsidiary, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined national, state and local statutory tax rate of such Person, expressed as a decimal, as estimated in good faith by a responsible accounting or financial officer of the Parent Guarantor.
Notwithstanding any of the foregoing, Consolidated Interest Expense shall not include any payments on any operating leases.
Consolidated Net Income means, with respect to any specified Person for any period, the aggregate of the net income (loss) attributable to such Person and its Subsidiaries which are Restricted Subsidiaries for such period, out of such Persons consolidated net income (excluding the net income (loss) of any Unrestricted Subsidiary), determined in accordance with IFRS and without any reduction in respect of preferred stock dividends; provided that:
(1) any goodwill or other intangible asset impairment, charge, amortization or write-off, including debt issuance costs, will be excluded;
(2) the net income (loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary which is a Subsidiary of the Person;
(3) solely for the purpose of determining the amount available for Restricted Payments under Section 4.08(a)(iii)(A), any net income (loss) of any Restricted Subsidiary (other than the Issuer or any Guarantor) will be excluded if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Parent Guarantor (or the Issuer or any Guarantor that holds the Equity Interests of such Restricted Subsidiary, as applicable) by operation of the terms of such Restricted Subsidiarys charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its shareholders (other than (a) restrictions that have been waived or otherwise released and (b) restrictions pursuant to the Notes, this Indenture or the Revolving Credit Facility); except that the Parent Guarantors equity in the net income of any such Restricted Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed or that could have been distributed by such Restricted Subsidiary during such period to the Parent Guarantor or another Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend to another Restricted Subsidiary (other than any Guarantor), to the limitation contained in this clause);
(4) any net gain (or loss) realized upon the sale or other disposition of any asset or disposed operations of the Parent Guarantor or any Restricted Subsidiaries (including pursuant to any sale leaseback transaction) which is not sold or otherwise disposed of in the ordinary course of business (as determined in good faith by the Parent Guarantor) or in connection with the sale or disposition of securities will be excluded;
(5) any extraordinary, non-recurring, unusual or exceptional gain, loss or charge or any profit or loss on the disposal of property, investments and businesses, asset impairments, or any non-cash charges or reserves in respect of any restructuring, redundancy, integration or severance or any expenses, charges, reserves or other costs related to acquisitions will be excluded;
(6) any non-cash compensation charge or expense arising from any grant of stock, stock options or other equity-based awards will be excluded;
(7) all deferred financing costs written off and premium paid or other expenses incurred directly in connection with any early extinguishment of Indebtedness and any net gain (loss) from any write-off or forgiveness of Indebtedness will be excluded;
(8) any one-time non-cash charges or any increases in amortization or depreciation resulting from purchase accounting, in each case, in relation to any acquisition of another Person or business or resulting from any reorganization or restructuring involving the Parent Guarantor or its Subsidiaries will be excluded;
(9) any unrealized gains or losses in respect of Hedging Obligations or any ineffectiveness recognized in earnings related to qualifying hedge transactions or the fair value or changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in each case, in respect of Hedging Obligations will be excluded; provided that any such gains or losses shall be included during the period in which they are realized;
(10) (x) any unrealized foreign currency transaction gains or losses in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person and (y) any unrealized foreign exchange gains or losses relating to translation of assets and liabilities denominated in foreign currencies will be excluded;
(11) any unrealized foreign currency translation or transaction gains or losses in respect of Indebtedness or other obligations of the Parent Guarantor or any Restricted Subsidiary owing to the Parent Guarantor or any Restricted Subsidiary will be excluded;
(12) to the extent covered by insurance and actually reimbursed, or so long as the Parent Guarantor has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (a) not denied by the applicable insurer in writing within 180 days and (b) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), losses with respect to liability or casualty events or business interruption;
(13) the cumulative effect of a change in accounting principles will be excluded; and
(14) the impact of capitalized, accrued or accreting or pay-in-kind interest or principal on Subordinated Shareholder Funding will be excluded.
Consolidated Total Indebtedness means, as of any date of determination, an amount equal to the sum (without duplication) of (1) the aggregate amount of all outstanding Indebtedness of the Parent Guarantor and its Restricted Subsidiaries (excluding any undrawn letters of credit) consisting of Capital Lease Obligations, bankers acceptances, Indebtedness for borrowed money and Indebtedness in respect of the deferred purchase price of property or services, plus (2) the aggregate amount of all outstanding Disqualified Stock of the Parent Guarantor and its Restricted Subsidiaries and all preferred stock of Restricted Subsidiaries of the Parent Guarantor, with the amount of such Disqualified Stock and preferred stock equal to the greater of their respective voluntary or involuntary liquidation preferences.
continuing means, with respect to any Default or Event of Default, that such Default or Event of Default has not been cured or waived.
Credit Facilities means one or more debt facilities, instruments or arrangements incurred by the Parent Guarantor or any Restricted Subsidiary (including but not limited to the Revolving Credit Facility) with banks, other institutions or investors providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such institutions or to special purpose entities formed to borrow from such institutions against such receivables), letters of credit, notes or other Indebtedness, in each case, as amended, restated, modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or extended in whole or in part from time to time (and whether in whole or in part and whether or not with the original administrative agent and lenders or another
administrative agent or agents or trustees or other banks or institutions and whether provided under the Revolving Credit Facility or one or more other credit or other agreements, indentures, financing agreements or otherwise) and in each case including all agreements, instruments and documents executed and delivered pursuant to or in connection with the foregoing (including any notes and letters of credit issued pursuant thereto and any Guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other Guarantees, pledges, agreements, security agreements and collateral documents). Without limiting the generality of the foregoing, the term Credit Facilities shall include any agreement or instrument (1) changing the maturity of any Indebtedness incurred thereunder or contemplated thereby, (2) adding Subsidiaries of the Parent Guarantor as additional borrowers, issuers or guarantors thereunder, (3) increasing the amount of Indebtedness incurred thereunder or available to be borrowed thereunder or (4) otherwise altering the terms and conditions thereof.
Custodian means any receiver, trustee, assignee, liquidator, custodian, administrator or similar official under any Bankruptcy Law.
Default means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
Definitive Registered Note means, with respect to the Notes, a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A attached hereto except that such Note shall not bear the legends applicable to Global Notes and shall not have the Schedule of Principal Amount in the Global Note attached thereto.
Disqualified Stock means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the six-month anniversary of the date that the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the issuer thereof to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the issuer thereof may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.08. For purposes hereof, the amount of Disqualified Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the Fair Market Value of such Disqualified Stock, such Fair Market Value to be determined as set forth herein.
DTC means The Depository Trust Company, its nominees and successors.
Equity Interests means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
Equity Offering means a public or private sale either (a) of the Equity Interests (other than Disqualified Stock and other than offerings registered on Form S-8 (or any successor form) under the Securities Act or any similar offering in other jurisdictions) of the Parent Guarantor or (b) of the Equity Interests of a direct or indirect parent entity of the Parent Guarantor to the extent that the net proceeds therefrom are contributed as Subordinated Shareholder Funding or to the equity capital of the Parent Guarantor or any of its Restricted Subsidiaries.
Escrow Agent means Citibank, N.A., London Branch, as escrow agent under the Escrow Agreement.
Escrow Agreement means the escrow agreement, dated the Issue Date, among the Issuer, the Trustee, the Escrow Agent and Citibank, N.A., London Branch, as security trustee.
Escrow Long Stop Date means May 15, 2017.
Euroclear means Euroclear SA/NV.
Event of Loss means the actual or constructive total loss, arranged or compromised total loss, destruction, condemnation, confiscation, requisition, seizure or forfeiture of, or other taking of title or use of, a Vessel.
Exchange Act means the U.S. Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated by the Commission thereunder.
Existing Indebtedness means all Indebtedness of the Parent Guarantor and its Restricted Subsidiaries in existence on the Issue Date; provided that the Indebtedness to be repaid on or following the First Escrow Release Date with the proceeds of the Notes issued on the Issue Date as described under Use ofproceeds in the Offering Memorandum shall cease to constitute Existing Indebtedness upon such repayment.
Fair Market Value means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress of either party, determined in good faith by the Parent Guarantors Chief Executive Officer or responsible accounting or financial officer of the Parent Guarantor.
FATCA Withholding means any withholding or deduction required pursuant to an agreement described in section 1471(b) of the Code, or otherwise imposed pursuant to sections 1471 through 1474 of the Code, any regulations or agreements thereunder, any official interpretations thereof, or any law implementing an intergovernmental approach thereto.
First Escrow Release Date has the meaning assigned to such term in the Escrow Agreement.
Fixed Charge Coverage Ratio means, with respect to any specified Person for any period, the ratio of the Consolidated EBITDA of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Subsidiaries which are Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the Calculation Date), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect (as determined in good faith by a responsible accounting or financial officer of the Parent Guarantor) to such incurrence, assumption, guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period; provided, however, that the pro forma calculation of Fixed Charges shall not give effect to (i) any Indebtedness incurred on the Calculation Date pursuant to Section 4.06(b) or (ii) the discharge on the Calculation Date of any Indebtedness to the extent that such discharge results from the proceeds incurred pursuant to Section 4.06(b).
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1) acquisitions that have been made by the specified Person or any of its Subsidiaries which are Restricted Subsidiaries, including through mergers or consolidations, or any Person or any of its Subsidiaries which are Restricted Subsidiaries acquired by the specified Person or any of its Subsidiaries which are Restricted Subsidiaries, and including all related financing transactions and including increases in ownership of Subsidiaries which are Restricted Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date, or that are to be made on the Calculation Date, will be given pro forma effect (as determined in good faith by a responsible accounting or financial officer of the Parent Guarantor and may include anticipated expense and cost reduction synergies that would be permitted to be included in a pro forma prepared in accordance with Regulation S-X under the Securities Act) as if they had occurred on the first day of the four-quarter reference period;
(2) the Consolidated EBITDA attributable to discontinued operations, as determined in accordance with IFRS, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded;
(3) the Fixed Charges attributable to discontinued operations, as determined in accordance with IFRS, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Subsidiaries which are Restricted Subsidiaries following the Calculation Date;
(4) any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period; and
(6) if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term as at the Calculation Date in excess of 12 months, or, if shorter, at least equal to the remaining term of such Indebtedness).
Fixed Charges means, with respect to any specified Person for any period, the sum, without duplication,
of:
(1) the consolidated interest expense (net of interest income) of such Person and its Restricted Subsidiaries for such period related to Indebtedness, whether paid or accrued, including, without limitation, amortization of debt discount (but not debt issuance costs), non-cash interest payments, the interest component of deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers acceptance financings, net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates; plus
(2) the consolidated interest expense (but excluding such interest on Subordinated Shareholder Funding) of such Person and its Subsidiaries which are Restricted Subsidiaries that was capitalized during such period; plus
(3) any interest on Indebtedness of another Person that is guaranteed by such Person or one of its Subsidiaries which are Restricted Subsidiaries or is secured by a Lien on assets of such Person or one of its Subsidiaries which are Restricted Subsidiaries; plus
(4) the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of preferred stock of any Restricted Subsidiary, other than dividends on Equity Interests payable to the Parent Guarantor or a Restricted Subsidiary, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined national, state and local statutory tax rate of such Person, expressed as a decimal, as estimated in good faith by a responsible accounting or financial officer of the Parent Guarantor.
Notwithstanding any of the foregoing, Fixed Charges shall not include any payments on any operating leases. For the avoidance of doubt, with respect to any particular French Tax Lease transaction, only the greater of (i) the consolidated interest expense of the Parent Guarantor and its Restricted Subsidiaries attributable to a French Tax Lease and (ii) the interest on Indebtedness of another Person that is guaranteed by any of the Parent Guarantor or its Restricted Subsidiaries, in each case, in relation to such French Tax Lease transaction, will be included in Fixed Charges for any period.
French Tax Lease means a transaction whereby:
(i) ownership of a Vessel (other than the Silver Cloud, the Silver Wind, the Silver Shadow, the Silver Spirit, the Silver Galapagos and the Silver Muse, for so long as each such Vessel is pledged as
Collateral) is transferred to a Tax Lease Counterparty (which may be by way of the transfer of ownership of the Person owning such vessel (including as a sale or other disposition or as a merger or consolidation));
(ii) such Vessel is leased by such Tax Lease Counterparty back to the Parent Guarantor or a Restricted Subsidiary;
(iii) the Parent Guarantor or a Restricted Subsidiary is granted (x) a purchase option in respect of such Vessel and/or (y) a share purchase option in respect of the entire share capital of the Tax Lease Counterparty;
(iv) the consideration (including the assumption of Indebtedness) for the transfer of the ownership of the Vessel subject to such French Tax Lease must be greater than or equal to the Fair Market Value of such Vessel; and
(v) the consideration for the acquisition of the Vessel is structured such that (x) the Tax Lease Counterparty assumes all of the outstanding Indebtedness (including any refinancing thereof) of the Parent Guarantor and its Restricted Subsidiaries that was used to acquire or pay the consideration for the construction of such Vessel (other than any Indebtedness incurred to finance any equity portion of the purchase price or construction price of the Vessel) without further recourse to the Parent Guarantor or any Restricted Subsidiary (other than (i) to the Vessel Holding Company selling the Vessel in such sale and leaseback transaction as a co-obligor under such Indebtedness and (ii) pursuant to a Guarantee permitted under Section 4.06(b)(19)) or (y) the Tax Lease Counterparty pays consideration in cash to the Parent Guarantor or the relevant Restricted Subsidiary and such cash proceeds are used to repurchase, prepay, redeem or repay all of the outstanding Indebtedness (including any refinancing of such Indebtedness) of the Parent Guarantor and any of its Restricted Subsidiaries that was used to acquire or pay for the consideration for the construction of such Vessel (other than any Indebtedness incurred to finance any equity portion of the purchase price or construction price of the Vessel) or (z) a combination of (x) and (y)
Government Securities means direct obligations of, or obligations guaranteed by, the United States of America, and the payment for which the United States pledges its full faith and credit.
Guarantee means a guarantee other than by endorsement of negotiable instruments for collection or deposit in the ordinary course of business, of all or any part of any Indebtedness (whether arising by agreements to keep-well, to take or pay or to maintain financial statement conditions, pledges of assets, sureties or otherwise).
Guarantors means the Parent Guarantor and any Restricted Subsidiary that guarantees the Notes in accordance with the provisions of this Indenture, and their respective successors and assigns, until the Note Guarantee of such Person has been released in accordance with this Indenture.
Hedging Obligations means, with respect to any specified Person, the obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;
(2) other agreements or arrangements designed to manage interest rates or interest rate risk; and
(3) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.
Holder means the Person in whose name a Note is registered on the Registrars books.
IFRS means International Financial Reporting Standards promulgated by the International Accounting Standards Board or any successor board or agency as in effect on the Issue Date.
Immaterial Subsidiary means any Subsidiary of the Parent Guarantor (a) the assets of which Subsidiary, taken together with all other Immaterial Subsidiaries as of such date, constitute less than or equal to 5% of the total assets of the Parent Guarantor and its Subsidiaries on a consolidated basis, (b) the revenues of which Subsidiary, taken together with all other Immaterial Subsidiaries as of such date, account for less than or equal to 5% of the total revenues of the Parent Guarantor and its Subsidiaries on a consolidated basis and (c) the Consolidated EBITDA of which Subsidiary, taken together with all other Immaterial Subsidiaries as of such date, accounts for less than 5% of the Consolidated EBITDA of the Parent Guarantor.
Indebtedness means, with respect to any specified Person (excluding accrued expenses and trade paya-bles), without duplication:
(1) the principal amount of indebtedness of such Person in respect of borrowed money;
(2) the principal amount of obligations of such Person evidenced by bonds, notes, debentures or similar instruments for which such Person is responsible or liable;
(3) reimbursement obligations of such Person in respect of letters of credit, bankers acceptances or similar instruments (except to the extent such reimbursement obligations relate to trade paya-bles and such obligations are satisfied within 30 days of incurrence), in each case only to the extent that the underlying obligation in respect of which the instrument was issued would be treated as Indebtedness;
(4) Capital Lease Obligations of such Person;
(5) the principal component of all obligations of such Person to pay the balance deferred and unpaid of the purchase price of any property or services due more than one year after such property is acquired or such services are completed;
(6) net obligations of such Person under Hedging Obligations (the amount of any such obligations to be equal at any time to the termination value of such agreement or arrangement giving rise to such obligation that would be payable by such Person at such time); and
(7) Attributable Debt of such Person;
if and to the extent any of the preceding items (other than letters of credit, Attributable Debt and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with IFRS. In addition, the term Indebtedness includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person.
The term Indebtedness shall not include:
(1) anything accounted for as an operating lease in accordance with IFRS as at the Issue
Date;
(2) contingent obligations in the ordinary course of business;
(3) in connection with the purchase by the Parent Guarantor or any Restricted Subsidiary of any business, any post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing;
(4) deferred or prepaid revenues;
(5) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the applicable seller;
(6) any contingent obligations in respect of workers compensation claims, early retirement or termination obligations, pension fund obligations or contributions or similar claims, obligations or contributions or social security or wage Taxes; or
(7) Subordinated Shareholder Funding.
Indenture means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof.
Intercreditor Agent means Citibank, N.A., London Branch acting as intercreditor agent pursuant to the Intercreditor Agreement.
Intercreditor Agreement means the Intercreditor Agreement, to be dated on or before the First Escrow Release Date, by and among, inter alios, the Security Agent, the agent for the Revolving Credit Facility, certain hedging counterparties and the other parties named therein, as amended, restated or otherwise modified or varied from time to time.
Interest Payment Date means the Stated Maturity of an installment of interest on the Notes.
Investment means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations, but excluding advances or extensions of credit to customers or suppliers made in the ordinary course of business), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as Investments on a balance sheet prepared in accordance with IFRS. If the Parent Guarantor or any Restricted Subsidiary sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary, the Parent Guarantor will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Parent Guarantors Investments in such Restricted Subsidiary that were not sold or disposed of in an amount determined as provided in the final paragraph of Section 4.08. The acquisition by the Parent Guarantor or any Restricted Subsidiary of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Parent Guarantor or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of Section 4.08. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value.
Issue Date means January 30, 2017.
Issuer Order means a written order signed in the name of the Issuer by any Person authorized by a resolution of the Board of Directors of the Issuer.
Lien means with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement or any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
Loan-to-Value Ratio means, as of the date of creation, incurrence or assumption of the related Permitted Collateral Lien pursuant to clause (B) or (C) of the definition thereof, or on the earlier of (i) the date of reinvestment of any Net Proceeds or (ii) the date on which the Parent Guarantor or the applicable Restricted Subsidiary enters into a binding commitment to reinvest such Net Proceeds from any Asset Sale or Event of Loss relating to any Collateral pursuant to clause (2), (3) or (4) of Section 4.09(b), the ratio of (1) the Consolidated Total Indebtedness on a pro forma basis that is secured by Liens on the Collateral (assuming, for purposes of this clause (1), that any Indebtedness available to be borrowed under any revolving credit facility, including the Revolving Credit Facility, incurred
pursuant to clause (2) of Section 4.06(b) is fully drawn) to (2) the aggregate of the Appraised Market Value as of such date of the Vessels (after giving pro forma effect to any improvements being financed by the Indebtedness the incurrence of which requires, or the application of Net Proceeds which requires, the calculation of such ratio to the extent reflected in such Appraised Market Value) that are a part of the Collateral (and secured by first priority liens (subject to Permitted Liens) for the benefit of the Holders) as of such date owned by the Parent Guarantor and each of its Restricted Subsidiaries plus the Fair Market Value (as determined by a recent appraisal of a qualified independent third party) of any other Collateral constituting marine spare parts and equipment held in inventory (as reflected on the consolidated balance sheet of the Issuer) or onboard Vessels that are part of the Collateral (and secured by first priority liens (subject to Permitted Liens) for the benefit of the Holders).
Management Advances means loans or advances made to, or Guarantees with respect to loans or advances made to, directors, officers or employees of any Parent Guarantor or any Restricted Subsidiary:
(1) in respect of travel, entertainment or moving related expenses incurred in the ordinary course of business;
(2) in respect of moving related expenses incurred in connection with any closing or consolidation of any office; or
(3) in the ordinary course of business and (in the case of this clause (3)) not exceeding $1.0 million in the aggregate outstanding at any time.
Moodys means Moodys Investors Service, Inc. and its successors.
Net Proceeds means (i) with respect to any Asset Sale or Event of Loss, the aggregate cash proceeds and Cash Equivalents received by the Parent Guarantor or any of its Restricted Subsidiaries in respect of such Asset Sale or Event of Loss (including, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received in any Asset Sale); provided that with respect to any Asset Sale, such amount shall be net of the direct costs relating to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale, taxes paid or payable as a result of the Asset Sale, and any reserve for adjustment or indemnification obligations in respect of the sale price of such asset or assets established in accordance with IFRS and (ii) with respect to any French Tax Lease, the cash proceeds, if any, received by the Parent Guarantor or relevant Restricted Subsidiary in excess of the amount of cash proceeds used to repurchase, prepay, redeem or repay the outstanding Indebtedness (including any refinancing thereof) of the Parent Guarantor or any of its Restricted Subsidiaries that was incurred to acquire or pay the consideration for the construction of the Vessel subject to such French Tax Lease.
New Build Agreement means that certain Shipbuilding Contract, entered into on January 10, 2014, by and between Fincantieri S.p.A., as builder, and the Parent Guarantor, as buyer, relating to the construction of the Silver Muse.
New Build Facility means that certain Loan Agreement, dated as of June 15, 2015, by and among, inter alios, Silversea New Build Six Ltd., as borrower, the banks and financial institutions listed in Schedule 1 thereto, as lenders, Norddeutsche Landesbank Girozentrale, as facility agent, and SACE S.p.A., as amended, restated or otherwise modified or varied from time to time.
New Vessel Aggregate Secured Debt Cap means the sum of each of the New Vessel Secured Debt Caps (with such New Vessel Aggregate Secured Debt Cap to be expressed as the sum of the euro and U.S. dollar denominations of the New Vessel Secured Debt Caps reflected in the New Vessel Aggregate Secured Debt Cap).
New Vessel Financing means any financing arrangement, including a sale and leaseback transaction (including a French Tax Lease), entered into by the Parent Guarantor or a Restricted Subsidiary for the purpose of financing or refinancing all or any part of the purchase price, cost of design or construction of a Vessel or Vessels or the acquisition of Capital Stock of entities owning or to own Vessels.
New Vessel Secured Debt Cap means, in respect of a New Vessel Financing, no more than 80% of the contract price for the acquisition and any other Ready for Sea Cost of the related Vessel (and 100% of any related export credit insurance premium), expressed in euros or U.S. dollars, as the case may be, being financed by such New Vessel Financing.
Non-Recourse Debt means Indebtedness as to which neither the Parent Guarantor nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) or (b) is directly or indirectly liable as a guarantor or otherwise.
Note Guarantee means the Guarantee by each Guarantor of the Issuers obligations under this Indenture and the Notes, executed pursuant to this Indenture.
Obligations means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.
Offering Memorandum means the final offering memorandum in respect of the Notes, dated January 13, 2017.
Officer means, with respect to any Person, the Chief Executive Officer or any Vice President of such Person.
Officers Certificate means a certificate signed on behalf of the Parent Guarantor by an Officer.
Opinion of Counsel means a written opinion from legal counsel. The counsel may be an employee of or counsel to the Issuer.
Parent Entity means any Person of which the Parent Guarantor is a Subsidiary (including any Person of which the Parent Guarantor becomes a Subsidiary after the Issue Date in compliance with this Indenture) and any holding company established by the Principal or any Related Party of the Principal for purposes of holding its investment in any Parent Entity.
Parent Guarantor means Silversea Cruise Holding Ltd., a limited liability company incorporated under the laws of the Commonwealth of The Bahamas.
Permitted Business means (a) in respect of the Parent Guarantor and its Restricted Subsidiaries, any businesses, services or activities engaged in by the Parent Guarantor or any of the Restricted Subsidiaries on the Issue Date and (b) any businesses, services and activities engaged in by the Parent Guarantor or any of the Restricted Subsidiaries that are related, complementary, incidental, ancillary or similar to any of the foregoing or are extensions or developments of any thereof.
Permitted Collateral Liens means (A) Liens on the Collateral described in one or more of clauses (2), (3), (4), (5), (6), (7), (8), (10), (11), (12), (13), (14), (15), (17), (18), (19), (20), (22), (24), (26) and (29) (to the extent related to the foregoing or clause (F) below) of the definition of Permitted Liens; (B) Liens on the Collateral to secure Indebtedness of the Parent Guarantor or a Restricted Subsidiary that is permitted to be incurred under clauses (2), (3), (9), (10) (in the case of clause (10), to the extent such Guarantee is in respect of Indebtedness otherwise permitted to be secured and specified in this definition), (12)(ii) or (18) of Section 4.06(b); provided, however, that, in the case of Indebtedness of the Parent Guarantor or a Restricted Subsidiary that is permitted to be incurred under clause (12)(ii) or (18) of Section 4.06(b), after giving pro forma effect to such transaction and the use of proceeds thereof, the Loan-to-Value Ratio does not exceed 60%; (C) Liens on the Collateral securing Indebtedness incurred under Section 4.06(a); provided that, in the case of this clause (C), after giving pro forma effect to such incurrence and the use of proceeds therefrom, the Loan-to-Value Ratio does not exceed 60%; (D) Liens on Collateral securing Permitted Refinancing Indebtedness in respect of any Indebtedness secured pursuant to the foregoing clauses (A), (B) and (C); (E) Liens on the Collateral securing Indebtedness incurred pursuant to clause (4) of Section 4.06(b); provided that (i) such Lien is incurred in relation to financing the improvement of a Vessel such that it is not reasonably practicable to provide a Lien over such improvement apart from such Vessel as a whole as determined in good
faith by the Parent Guarantor and (ii) the Parent Guarantor shall deliver to the Trustee and the Security Agent a new appraisal for the Vessel subject to such improvements prepared by an Approved Shipbroker as soon as reasonably practicable following the completion of such improvements; provided, however, that such Liens securing Indebtedness pursuant to the foregoing clauses (B), (C), (D) and this clause (E) rank equal (with respect to the application of proceeds from any realization or enforcement of the Collateral in accordance with the Intercreditor Agreement) or junior to the Liens on the Collateral securing the Notes or the Note Guarantees (except that a Lien in favor of Indebtedness incurred under clauses (2) or (9) of Section 4.06(b) may have super priority in respect of the application of proceeds from any realization or enforcement of the Collateral on terms not materially less favorable to the Holders than that accorded to the Revolving Credit Facility on the First Escrow Release Date as provided in the Inter-creditor Agreement as in effect on the First Escrow Release Date), and (F) Liens or Collateral described in clause (23) of the definition of Permitted Liens; provided that after giving pro forma effect to such transaction and the use of proceeds thereof, the Loan-to-Value Ratio does not exceed 60%.
Permitted Investments means:
(1) any Investment in a Restricted Subsidiary;
(2) any Investment in cash in U.S. dollars, euros, Swiss francs, U.K. pounds sterling or Australian dollars, and Cash Equivalents;
(3) any Investment by the Parent Guarantor or any Restricted Subsidiary in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary; or
(b) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Parent Guarantor or a Restricted Subsidiary;
(4) any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 4.09 or any other disposition of assets not constituting an Asset Sale;
(5) any acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Parent Guarantor;
(6) any Investments received in compromise or resolution of (A) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Parent Guarantor or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or (B) litigation, arbitration or other disputes with Persons who are not Affiliates;
(7) Investments in receivables owing to the Parent Guarantor or any Restricted Subsidiary created or acquired in the ordinary course of business;
(8) Investments represented by Hedging Obligations, which obligations are permitted to be incurred under Section 4.06(b)(9);
(9) repurchases of the Notes;
(10) any Guarantee of Indebtedness permitted to be incurred under Section 4.06 other than a guarantee of Indebtedness of an Affiliate of the Parent Guarantor that is not a Restricted Subsidiary;
(11) any Investment existing on, or made pursuant to binding commitments existing on, the Issue Date and any Investment consisting of an extension, modification or renewal of any Investment
existing on, or made pursuant to a binding commitment existing on, the Issue Date; provided that the amount of any such Investment may be increased (a) as required by the terms of such Investment as in existence on the Issue Date or (b) as otherwise permitted under this Indenture;
(12) Investments acquired after the Issue Date as a result of the acquisition by the Parent Guarantor or any Restricted Subsidiary of another Person, including by way of a merger, amalgamation or consolidation with or into the Parent Guarantor or any of its Restricted Subsidiaries in a transaction that is not prohibited by Article Five after the Issue Date to the extent that such Investments were not made in contemplation of such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(13) Management Advances;
(14) Investments consisting of the licensing and contribution of intellectual property rights pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(15) Investments consisting of, or to finance the acquisition, purchase, charter or leasing or the construction, installation or the making of any improvement with respect to any asset (including Vessels) or purchases and acquisitions of inventory, supplies, materials, services or equipment or purchases of contract rights, licenses or leases of intellectual property rights (including prepaid expenses and advances to suppliers), in each case, in the ordinary course of business (including, for the avoidance of doubt any deposits made to secure the acquisition, purchase or construction of, or any options to acquire, any vessel);
(16) other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (16) that are at the time outstanding not to exceed $10.0 million; provided that if an Investment is made pursuant to this clause in a Person that is not a Restricted Subsidiary and such Person subsequently becomes a Restricted Subsidiary or is subsequently designated a Restricted Subsidiary pursuant to Section 4.17, such Investment, if applicable, shall thereafter be deemed to have been made pursuant to clause (1) or (3) of the definition of Permitted Investments and not this clause;
(17) Investments in joint ventures having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other investments made pursuant to this clause (17) that are at the time outstanding, not to exceed $5.0 million; provided that if an Investment is made pursuant to this clause in a Person that is not a Restricted Subsidiary and such Person subsequently becomes a Restricted Subsidiary or is subsequently designated a Restricted Subsidiary pursuant to Section 4.17, such Investment, if applicable, shall thereafter be deemed to have been made pursuant to clause (1) or (3) of the definition of Permitted Investments and not this clause;
(18) Investments consisting of subordinated loans provided by the Parent Guarantor or a Restricted Subsidiary to a Tax Lease Counterparty representing not more than an amount equal to (i) the greater of (x) the Fair Market Value of the related Vessel or (y) the contract price for the acquisition or construction of the related Vessel plus (ii) the amount of all fees and expenses, including any related export credit insurance premium, incurred in connection with such French Tax Lease less (iii) the amount of Indebtedness incurred or assumed by the Tax Lease Counterparty in connection with its acquisition of such Vessel pursuant to the associated French Tax Lease.
Permitted Jurisdictions means (i) any state of the United States of America, the District of Columbia or any territory of the United States of America, (ii) Bermuda, (iii) the Commonwealth of The Bahamas, (iv) the Isle of Man, (v) the Marshall Islands, (vi) Malta, (vii) the United Kingdom and (viii) any member state of the European Economic Area.
Permitted Liens means:
(1) Liens in favor of the Parent Guarantor or any of the Restricted Subsidiaries;
(2) Liens on property (including Capital Stock) of a Person existing at the time such Person becomes a Restricted Subsidiary or is merged with or into or consolidated with the Parent Guarantor or any Restricted Subsidiary; provided that such Liens were in existence prior to the contemplation of such Person becoming a Restricted Subsidiary or such merger or consolidation, were not incurred in contemplation thereof and do not extend to any assets other than those of the Person (or the Capital Stock of such Person) that becomes a Restricted Subsidiary or is merged with or into or consolidated with the Parent Guarantor or any Restricted Subsidiary;
(3) Liens to secure the performance of statutory obligations, insurance, surety, bid, performance, travel or appeal bonds, workers compensation obligations, performance bonds or other obligations of a like nature incurred in the ordinary course of business (including Liens to secure letters of credit or similar instruments issued to assure payment of such obligations or for the protection of customer deposits or credit card payments);
(4) Liens on any property or assets of the Parent Guarantor or any Restricted Subsidiary for the purpose of securing Capital Lease Obligations, purchase money obligations, mortgage financings or other Indebtedness, in each case, incurred pursuant to Section 4.06(b)(4) in connection with the financing of all or any part of the purchase price, lease expense, rental payments or cost of design, construction, installation, repair, replacement or improvement of property, plant or equipment or other assets (including Capital Stock) used in the business of the Parent Guarantor or any of its Restricted Subsidiaries; provided that any such Lien may not extend to any assets or property owned by the Parent Guarantor or any of its Restricted Subsidiaries at the time the Lien is incurred other than (i) the assets (including Vessels) and property acquired, improved, constructed, leased or financed (provided that to the extent any such Capital Lease Obligations, purchase money obligations, mortgage financings or other Indebtedness relate to multiple assets or properties, then all such assets and properties may secure any such Capital Lease Obligations, purchase money obligations, mortgage financings or other Indebtedness) and (ii) to the extent such Lien secures financing in connection with the purchase of a Vessel, Related Vessel Property;
(5) Liens existing on the Issue Date; provided that any Liens securing Existing Indebtedness to be repaid on or following the First Escrow Release Date with the proceeds of the Notes issued on the Issue Date as described under Use ofproceeds in the Offering Memorandum shall cease to be Permitted Liens pursuant to this clause (5) upon such repayment;
(6) Liens for taxes, assessments or governmental charges or claims that (x) are not yet due and payable or (y) are being contested in good faith by appropriate proceedings that have the effect of preventing the forfeiture or sale of the property subject to any such Lien and for which adequate reserves are being maintained to the extent required by IFRS;
(7) Liens imposed by law, such as carriers, warehousemens, landlords and mechanics, materialmens, repairmens, construction or other like Liens arising in the ordinary course of business and with respect to amounts not yet delinquent or being contested in good faith by appropriate proceedings and in respect of which, if applicable, the Parent Guarantor or any Restricted Subsidiary shall have set aside on its books reserves in accordance with IFRS; and with respect to Vessels: (i) Liens fully covered (in excess of customary deductibles) by valid policies of insurance and (ii) Liens for general average and salvage, including contract salvage; or Liens arising solely by virtue of any statutory or common law provisions relating to attorneys liens or bankers liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depositary institution;
(8) survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property that were not incurred in connection with Indebtedness and that do
not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
(9) Liens created for the benefit of (and to secure) the Notes (or the Note Guarantees) issued on the Issue Date (or the First Escrow Release Date);
(10) Liens securing Indebtedness under Hedging Obligations, which obligations are permitted to be incurred under Section 4.06(b)(9);
(11) Liens on insurance policies and proceeds thereof, or other deposits, to secure insurance premium financings;
(12) Liens arising out ofjudgments or awards not constituting an Event of Default and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made;
(13) Liens on cash, Cash Equivalents or other property arising in connection with the defea-sance, discharge or redemption of Indebtedness;
(14) Liens on specific items of inventory or other goods (and the proceeds thereof) of any Person securing such Persons obligations in respect of bankers acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(15) Leases, licenses, subleases and sublicenses of assets in the ordinary course of business and Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of assets entered into in the ordinary course of business;
(16) [Reserved];
(17) (i) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which the Parent Guarantor or any Restricted Subsidiary has easement rights or on any real property leased by the Parent Guarantor or any Restricted Subsidiary and subordination or similar agreements relating thereto and (ii) any condemnation or eminent domain proceedings or compulsory purchase order affecting real property;
(18) Liens securing or arising by reason of any netting or set-off arrangement entered into in the ordinary course of banking or other trading activities;
(19) Liens on Unearned Customer Deposits (i) in favor of credit card companies pursuant to agreements therewith consistent with industry practice and (ii) in favor of customers;
(20) pledges of goods, the related documents of title and/or other related documents arising or created in the ordinary course of the Parent Guarantor or any Restricted Subsidiarys business or operations as Liens only for Indebtedness to a bank or financial institution directly relating to the goods or documents on or over which the pledge exists;
(21) Liens over cash paid into an escrow account pursuant to any purchase price retention arrangement as part of any permitted disposal by the Parent Guarantor or a Restricted Subsidiary on condition that the cash paid into such escrow account in relation to a disposal does not represent more than 15% of the net proceeds of such disposal;
(22) Liens incurred in the ordinary course of business of the Parent Guarantor or any Restricted Subsidiary arising from vessel chartering, maintenance, the furnishing of supplies and bunkers to vessels;
(23) Liens securing an aggregate principal amount of Indebtedness not to exceed the aggregate amount of Indebtedness permitted to be incurred pursuant to Section 4.06(b)(5); provided that such Lien extends only to (i) the assets (including Vessels), purchase price or cost of design, construction, installation or improvement of which is financed or refinanced thereby and any proceeds of products thereof, (ii) any Related Vessel Property or (iii) the Capital Stock of a Vessel Holding Company;
(24) Liens created on any asset of the Parent Guarantor or a Restricted Subsidiary established to hold assets of any stock option plan or any other management or employee benefit or incentive plan or unit trust of the Parent Guarantor or a Restricted Subsidiary securing any loan to finance the acquisition of such assets;
(25) Liens incurred by the Parent Guarantor or any Restricted Subsidiary with respect to obligations that do not exceed the greater of $10.0 million and 0.75% of Total Tangible Assets at any one time outstanding;
(26) Liens arising from financing statement filings (or similar filings in any applicable jurisdiction) regarding operating leases entered into by the Parent Guarantor and its Restricted Subsidiaries in the ordinary course of business;
(27) any interest or title of a lessor under any Capital Lease Obligation or an operating lease;
(28) Liens on the Equity Interests of Unrestricted Subsidiaries; and
(29) any extension, renewal, refinancing or replacement, in whole or in part, of any Lien described in the foregoing clauses (1) through (28) (but excluding clauses (4), (16) and (25)); provided that (x) any such Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Indebtedness being refinanced and (y) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of the outstanding principal amount or, if greater, committed amount of such Indebtedness at the time the original Lien became a Permitted Lien under this Indenture and an amount necessary to pay any fees and expenses, including premiums, related to such extension, renewal, refinancing or replacement.
Permitted Refinancing Indebtedness means any Indebtedness incurred by the Parent Guarantor or any of its Restricted Subsidiaries, any Disqualified Stock issued by the Parent Guarantor or any of its Restricted Subsidiaries and any preferred stock issued by any Restricted Subsidiary, in each case, in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, exchange, defease or discharge other Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries (other than intercompany Indebtedness), including Permitted Refinancing Indebtedness; provided that:
(1) the aggregate principal amount (or accreted value, if applicable, or if issued with original issue discount, aggregate issue price, or, if greater, committed amount (only to the extent the committed amount could have been incurred on the date of initial incurrence)) of such new Indebtedness, the liquidation preference of such new Disqualified Stock or the amount of such new preferred stock does not exceed the principal amount (or accreted value, if applicable, or if issued with original issue discount, aggregate issue price or, if greater, committed amount (only to the extent the committed amount could have been incurred on the date of initial incurrence)) of the Indebtedness, the liquidation preference of the Disqualified Stock or the amount of the preferred stock (plus in each case the amount of accrued and unpaid interest or dividends on and the amount of all fees and expenses, including premiums, incurred in connection with the incurrence or issuance of, such Indebtedness, Disqualified Stock or preferred stock), renewed, refunded, refinanced, replaced, exchanged, defeased or discharged;
(2) such Permitted Refinancing Indebtedness has (a) a final maturity date that is either (i) no earlier than the final maturity date of the Indebtedness being renewed, refunded, refinanced, replaced, exchanged, defeased or discharged or (ii) after the final maturity date of the Notes and (b) has a Weighted Average Life to Maturity that is equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged;
(3) if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Notes or the Note Guarantees, as the case may be, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes or the Note Guarantees, as the case may be, on terms at least as favorable to the holders of Notes or the Note Guarantees, as the case may be, as those contained in the documentation governing the Indebtedness being renewed, refunded, refinanced, replaced, exchanged, defeased or discharged; and
(4) if such Indebtedness is incurred either by the Parent Guarantor (if the Parent Guarantor was the obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged) or by the Restricted Subsidiary that was the obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged, such Indebtedness is guaranteed only by Persons who were obligors on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged.
Person means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.
Principal means Manfredi Lefebvre.
Productive Asset Lease means any lease or charter of one or more Vessels (other than leases or charters required to be classified and accounted for as capital leases under IFRS).
QIB means a Qualified Institutional Buyer as defined in Rule 144A.
Ready for Sea Cost means with respect to a Vessel to be acquired, constructed or leased (pursuant to a Capital Lease Obligation) by the Parent Guarantor or any Restricted Subsidiary, the aggregate amount of all expenditures incurred to acquire or construct and bring such Vessel to the condition and location necessary for its intended use, including any and all inspections, appraisals, repairs, modifications, additions, permits and licenses in connection with such acquisition or lease, which would be classified as property, plant and equipment in accordance with IFRS and any assets relating to such Vessel.
Record Date, for the interest payable on any Interest Payment Date, means the January 15 and July 15 (in each case, whether or not a Business Day) next preceding such Interest Payment Date.
Redemption Date means, when used with respect to any Note to be redeemed, in whole or in part, the date fixed for such redemption by or pursuant to this Indenture.
Redemption Price means, when used with respect to any Note to be redeemed, the price at which it is to be redeemed pursuant to this Indenture.
Regulation S means Regulation S under the Securities Act (including any successor regulation thereto), as it may be amended from time to time.
Related Party means:
(1) any immediate family member of the Principal; or
(2) any trust, corporation, partnership, limited liability company or other entity, the beneficiaries, stockholders, partners, members, owners or Persons beneficially holding a majority (and controlling)
interest of which consists of, or any charitable foundations founded by, the Principal and/or such other Persons referred to in the immediately preceding clause (1).
Related Vessel Property means (i) any cash deposited in a bank account owned by the Parent Guarantor or a Restricted Subsidiary representing prepayments of principal and interest of the relevant financing for up to one year, (ii) any insurance policies or proceeds relating to such Vessel (whether incurred by way of pledge or assignment of such policies or proceeds thereof or otherwise), (iii) any warranty claims of the Parent Guarantor or a Restricted Subsidiary (whether incurred by way of pledge or assignment of such claims or otherwise) against a contractor or developer of any such Vessel and (iv) all monies payable to the Parent Guarantor or any of its Restricted Subsidiaries as a consequence of the operation, charter, lease or rental of such Vessel (or any agreements related thereto).
Replacement Assets means (1) assets not classified as current assets under IFRS that will be used or useful in a Permitted Business or (2) substantially all the assets of a Permitted Business or a majority of the Voting Stock of any Person engaged in a Permitted Business that will become on the date of acquisition thereof a Restricted Subsidiary.
Restricted Investment means an Investment other than a Permitted Investment.
Restricted Subsidiary means any Subsidiary of the Parent Guarantor that is not an Unrestricted Subsidiary.
Revolving Credit Facility means the revolving credit agreement for an amount of up to $40.0 million to be entered into on or prior to the First Escrow Release Date among the Issuer, as borrower, certain of the Parent Guarantors Subsidiaries, as guarantors, and certain financial institutions, as lenders, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or any successor or replacement agreement or agreements or increasing the amount loaned thereunder (subject to compliance with Section 4.06) or altering the maturity thereof.
Rule 144 means Rule 144 under the Securities Act (including any successor regulation thereto), as it may be amended from time to time.
Rule 144A means Rule 144A under the Securities Act (including any successor regulation thereto), as it may be amended from time to time.
S&P means Standard & Poors Ratings Group and its successors.
Second Escrow Release Date has the meaning assigned to such term in the Escrow Agreement.
Securities Act means the U.S. Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated by the Commission thereunder.
Security Agent means Citibank, N.A., London Branch acting as security agent pursuant to the Intercredi-tor Agreement or such successor Security Agent or any delegate thereof as may be appointed thereunder.
Security Documents means the security agreements, pledge agreements, charge agreements, collateral assignments and any other instrument and document executed and delivered pursuant to this Indenture or otherwise or any of the foregoing, as the same may be amended, supplemented or otherwise modified from time to time, creating the security interests in the Collateral as contemplated by this Indenture.
Security Interests means security interests in the Collateral securing the Notes and the Note Guarantees.
Significant Subsidiary means, at the date of determination, any Restricted Subsidiary that together with its Subsidiaries which are Restricted Subsidiaries (i) for the most recent fiscal year, accounted for more than 10% of the consolidated revenues of the Parent Guarantor or (ii) as of the end of the most recent fiscal year, was the owner of more than 10% of the consolidated assets of the Parent Guarantor.
Stated Maturity means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the Issue Date, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
Subordinated Shareholder Funding means, collectively, any funds provided to the Parent Guarantor by any Parent Entity, any Affiliate of any Parent Entity or the Principal or any Related Party of the Principal in exchange for or pursuant to any security, instrument or agreement other than Capital Stock, in each case issued to and held by the foregoing Persons, together with any such security, instrument or agreement and any other security or instrument other than Capital Stock issued in payment of any obligation under any Subordinated Shareholder Funding; provided, however, that such Subordinated Shareholder Funding:
(1) does not mature or require any amortization, redemption or other repayment of principal or any sinking fund payment prior to the first anniversary of the maturity of the Notes (other than through conversion or exchange of such funding into Capital Stock (other than Disqualified Stock) of the Parent Guarantor or any funding meeting the requirements of this definition);
(2) does not require, prior to the first anniversary of the maturity of the Notes, payment of cash interest, cash withholding amounts or other cash gross ups, or any similar cash amounts;
(3) contains no change of control or similar provisions and does not accelerate and has no right to declare a default or event of default or take any enforcement action or otherwise require any cash payment, in each case, prior to the first anniversary of the maturity of the Notes;
(4) does not provide for or require any security interest or encumbrance over any asset of the Parent Guarantor or any of its Subsidiaries; and
(5) pursuant to the Intercreditor Agreement, an Additional Intercreditor Agreement or another intercreditor agreement is fully subordinated and junior in right of payment to the Notes pursuant to subordination, payment blockage and enforcement limitation terms which are customary in all material respects for similar funding.
Subsidiary means, with respect to any specified Person:
(1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership or limited liability company of which (a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general and limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof, whether in the form of membership, general, special or limited partnership interests or otherwise, and (b) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
Subsidiary Guarantor means each subsidiary of the Parent Guarantor that has provided a Note Guarantee.
Supplemental Indenture means a supplemental indenture to this Indenture substantially in the form of Exhibit D attached hereto.
Tax means any tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and additions to tax related thereto, and, for the avoidance of doubt, including any withholding or deduction for or on account of Tax). Taxes and Taxation shall be construed to have corresponding meanings.
Tax Lease Counterparty means a Subsidiary of a credit institution which is tax integrated within such credit institutions tax group or is tax transparent with such credit institution (including any Subsidiary of the Parent Guarantor that is transferred to such credit institution) that is the counterparty to the Parent Guarantor or the relevant Restricted Subsidiary under a French Tax Lease.
Total Assets means the total assets of the Parent Guarantor and its Subsidiaries that are Restricted Subsidiaries, as shown on the most recent balance sheet of the Parent Guarantor, determined on a consolidated basis in accordance with IFRS.
Total Tangible Assets means the Total Assets excluding consolidated intangible assets.
Trust Officer means any officer within the agency and corporate trust group, division or section of the Trustee (however named, or any successor group of the Trustee) and also means, with respect to any particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
Unearned Customer Deposits means amounts paid to the Parent Guarantor or any of its Subsidiaries representing customer deposits for unsailed bookings (whether paid directly by the customer or by a credit card company).
Unrestricted Subsidiary means any Subsidiary of the Parent Guarantor (other than the Issuer or any successor to the Issuer) that is designated by the Board of Directors of the Parent Guarantor as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt or a Lien described in clause (28) of the definition of Permitted Liens;
(2) except as permitted under Section 4.10, is not party to any agreement, contract, arrangement or understanding with the Parent Guarantor or any Restricted Subsidiary unless the terms of any such agreement, contract, arrangement or understanding are, taken as a whole, no less favorable to the Parent Guarantor or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Parent Guarantor; and
(3) is a Person with respect to which neither the Parent Guarantor nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Persons financial condition or to cause such Person to achieve any specified levels of operating results.
U.S. dollar or $ means the lawful currency of the United States of America.
Vessel means a passenger cruise vessel which is owned by and registered (or to be owned by and registered) in the name of the Parent Guarantor or any of its Restricted Subsidiaries or operated or to be operated by the Parent Guarantor or any of its Restricted Subsidiaries, in each case together with all related spares, equipment and any additions or improvements.
Vessel Holding Company means a Subsidiary of the Parent Guarantor, the assets of which consist solely of one or more Vessels and the corresponding Related Vessel Property and whose activities are limited to the ownership of such Vessels and Related Vessel Property and any other asset reasonably related to or resulting from the
acquisition, purchase, charter, leasing, rental, construction, ownership, operation, improvement, expansion and maintenance of such Vessel, the leasing of such Vessels and any activities reasonably incidental to the foregoing.
Voting Stock of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.
Weighted Average Life to Maturity means, when applied to any Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by
(2) the then outstanding principal amounts of such Indebtedness.
SECTION 1.02. Other Definitions.
Term |
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|
Defined in Section |
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|
| |
Additional Amounts |
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4.12(a) | |
Additional Intercreditor Agreement |
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4.13(a) | |
Additional Notes |
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Recitals | |
Affiliate Transaction |
|
4.10(a) | |
Agents |
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2.03 | |
Applicable Procedures |
|
2.06(b) | |
Authorized Agent |
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12.08 | |
Change of Control Offer |
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4.11(a) | |
Change of Control Purchase Date |
|
4.11(a) | |
Change of Control Purchase Price |
|
4.11(a) | |
Covenant Defeasance |
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8.03 | |
Defaulted Interest |
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2.12 | |
Event of Default |
|
6.01(a) | |
Excess Proceeds |
|
4.09(c) | |
Global Notes |
|
2.01(c) | |
incur |
|
4.06(a) | |
Increased Amount |
|
4.07 | |
Issuer |
|
Preamble | |
Judgment Currency |
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12.14 | |
Legal Defeasance |
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8.02 | |
Notes |
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Recitals | |
Obligations |
|
10.01(a) | |
Original Notes |
|
Recitals | |
Participants |
|
2.01(c) | |
Paying Agent |
|
2.03 | |
Permitted Debt |
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4.06(b) | |
Principal Paying Agent |
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2.03 | |
Registrar |
|
2.03 | |
Regulation S Global Note |
|
2.01(b) | |
Required Currency |
|
12.14 | |
Restricted Global Note |
|
2.01(b) | |
Restricted Payments |
|
4.08(a) | |
Security Register |
|
2.03 | |
Special Mandatory Redemption |
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3.06 | |
Special Mandatory Redemption Price |
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3.06 |
Term |
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|
Defined in Section |
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|
| |
Special Termination Date |
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3.06 | |
Supplemental Security Agent |
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7.08(b) | |
Surviving Entity |
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5.01(a) | |
Tax Jurisdiction |
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4.12(a) | |
Transfer Agent |
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2.03 | |
Trustee |
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Preamble |
SECTION 1.03. Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned to it in accordance with IFRS;
(iii) or is not exclusive;
(iv) including or include means including or include without limitation;
(v) words in the singular include the plural and words in the plural include the singular;
(vi) unsecured or unguaranteed Indebtedness shall not be deemed to be subordinate or junior to secured or guaranteed Indebtedness merely by virtue of its nature as unsecured or unguaranteed Indebtedness; and
(vii) the words herein, hereof and hereunder and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section, clause or other subdivision.
ARTICLE TWO
THE NOTES
SECTION 2.01. The Notes.
(a) Form and Dating. The Notes and the Trustees (or the authenticating agents) certificate of authentication shall be substantially in the form of Exhibit A attached hereto with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture. The Notes may have notations, legends or endorsements required by law, the rules of any securities exchange agreements to which the Issuer is subject, if any, or usage; provided that any such notation, legend or endorsement is in form reasonably acceptable to the Issuer. The Issuer shall approve the form of the Notes. Each Note shall be dated the date of its authentication. The terms and provisions contained in the form of the Notes shall constitute and are hereby expressly made a part of this Indenture. The Notes shall be issued only in registered form without coupons and only in minimum denominations of $2,000 in principal amount and any integral multiples of $1,000 in excess thereof.
(b) Global Notes. Notes offered and sold to QIBs in reliance on Rule 144A shall be issued initially in the form of one or more Global Notes substantially in the form of Exhibit A attached hereto, with such applicable legends as are provided in Exhibit A attached hereto, except as otherwise permitted herein (the Restricted Global Note), which shall be deposited on behalf of the purchasers of the Notes represented thereby with a custodian for DTC, and registered in the name of DTC or its nominee, duly executed by the Issuer and authenticated by the Trustee (or its authenticating agent in accordance with Section 2.02) as hereinafter provided. The aggregate principal amount of the Restricted Global Note may from time to time be increased or decreased by adjustments made by the Registrar on Schedule A to the Restricted Global Note and recorded in the Security Register, as hereinafter provided.
Notes offered and sold in reliance on Regulation S shall be issued initially in the form of one or more Global Notes substantially in the form of Exhibit A attached hereto, with such applicable legends as are provided in Exhibit A attached hereto, except as otherwise permitted herein (the Regulation S Global Note), which shall be deposited on behalf of the purchasers of the Notes represented thereby with a custodian for DTC, and registered in the name of DTC or its nominee, duly executed by the Issuer and authenticated by the Trustee (or its authenticating agent in accordance with Section 2.02) as hereinafter provided. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made by the Registrar on Schedule A to the Regulation S Global Note and recorded in the Security Register, as hereinafter provided.
(c) Book-Entry Provisions. This Section 2.01(c) shall apply to the Regulation S Global Notes and the Restricted Global Notes (together, the Global Notes) deposited with or on behalf of DTC.
Members of, or participants and account holders in, DTC (including Euroclear and Clearstream) (Participants) shall have no rights under this Indenture with respect to any Global Note held on their behalf by DTC or by the Trustee or any custodian of DTC or under such Global Note, and DTC or its nominees may be treated by the Issuer, a Guarantor, the Trustee and any agent of the Issuer, a Guarantor or the Trustee as the sole owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, a Guarantor, the Trustee or any agent of the Issuer, a Guarantor or the Trustee from giving effect to any written certification, proxy or other authorization furnished by DTC or impair, as between DTC, on the one hand, and the Participants, on the other, the operation of customary practices of such persons governing the exercise of the rights of a Holder of a beneficial interest in any Global Note.
Subject to the provisions of Section 2.10(b), the registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Participants and Persons that may hold interests through Participants, to take any action that a Holder is entitled to take under this Indenture or the Notes.
Except as provided in Section 2.10, owners of a beneficial interest in Global Notes will not be entitled to receive physical delivery of Definitive Registered Notes.
SECTION 2.02. Execution and Authentication. An authorized member of the Issuers Board of Directors or an executive officer of the Issuer shall sign the Notes on behalf of the Issuer by manual or facsimile signature.
If an authorized member of the Issuers Board of Directors or an executive officer whose signature is on a Note no longer holds that office at the time the Trustee (or its authenticating agent) authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid or obligatory for any purpose until an authorized signatory of the Trustee (or its authenticating agent) manually signs the certificate of authentication on the Note. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.
The Issuer shall execute and, upon receipt of an Issuer Order, the Trustee shall authenticate (whether itself or via the authenticating agent) (a) Original Notes, on the date hereof, for original issue up to an aggregate principal amount of $550,000,000 and (b) Additional Notes, from time to time, subject to compliance at the time of issuance of such Additional Notes with the provisions of Section 4.06 and Section 4.07. The Issuer is permitted to issue Additional Notes as part of a further issue under this Indenture, from time to time; provided that, if the Additional Notes are not fungible with any series of Original Notes for U.S. federal income tax purposes, such Additional Notes will have a separate CUSIP number and/or ISIN, if applicable.
The Trustee may appoint an authenticating agent reasonably acceptable to the Issuer to authenticate the Notes. Unless limited by the terms of such appointment, any such authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by any such agent. An authenticating agent has the same rights as any Registrar, co-Registrar, Transfer Agent or Paying Agent to deal with the Issuer or an Affiliate of the Issuer.
The Trustee shall have the right to decline to authenticate and deliver any Notes under this Section 2.02 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.
SECTION 2.03. Registrar, Transfer Agent and Paying Agent. The Issuer shall maintain an office or agency for the registration of the Notes and of their transfer or exchange (the Registrar), an office or agency where Notes may be transferred or exchanged (the Transfer Agent), an office or agency where the Notes may be presented for payment (the Paying Agent and references to the Paying Agent shall include the Principal Paying Agent) and an office or agency where notices or demands to or upon the Issuer in respect of the Notes may be served. The Issuer may appoint one or more Transfer Agents, one or more co-Registrars and one or more additional Paying Agents.
The Issuer shall maintain a Paying Agent in London, England and a Registrar in Frankfurt, Germany. The Issuer or any of its Affiliates may act as Transfer Agent, Registrar, co-Registrar, Paying Agent and agent for service of notices and demands in connection with the Notes; provided that neither the Issuer nor any of its Affiliates shall act as Paying Agent for the purposes of Articles Three and Eight and Sections 4.09 and 4.11.
The Issuer hereby appoints (i) Citibank, N.A., London Branch, located at Citigroup Centre, 25 Canada Square, Canary Wharf, London E14 5LB, United Kingdom, as Transfer Agent and as Principal Paying Agent (the Principal Paying Agent) in London, England and (ii) Citigroup Global Markets Deutschland AG, located at 5th Floor Reuterweg 16, 60323 Frankfurt, Germany, as Registrar. Each hereby accepts such appointments. The Transfer Agent, Principal Paying Agent and Registrar and any authenticating agent are collectively referred to in this Indenture as the Agents. The roles, duties and functions of the Agents are of a mechanical nature and each Agent shall only perform those acts and duties as specifically set out in this Indenture and no other acts, covenants, obligations or duties shall be implied or read into this Indenture against any of the Agents. For the avoidance of doubt, a Paying Agents obligation to disburse any funds shall be subject to prior receipt by it of those funds to be disbursed.
The Issuer shall maintain a Paying Agent in an EU Member State that is not obliged to withhold or deduct tax pursuant to European Council Directive 2003/48/EC, as amended or supplemented from time to time, including through European Council Directive 2014/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, any such Directive.
Subject to any applicable laws and regulations, the Issuer shall cause the Registrar to keep a register (the Security Register) at its corporate trust office in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of ownership, exchange, and transfer of the Notes. Such registration in the Security Register shall be conclusive evidence of the ownership of Notes. Included in the books and records for the Notes shall be notations as to whether such Notes have been paid, exchanged or transferred, canceled, lost, stolen, mutilated or destroyed and whether such Notes have been replaced. In the case of the replacement of any of the Notes, the Registrar shall keep a record of the Note so replaced and the Note issued in replacement thereof. In the case of the cancellation of any of the Notes, the Registrar shall keep a record of the Note so canceled and the date on which such Note was canceled.
The Issuer shall enter into an appropriate agency agreement with any Paying Agent or co-Registrar not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Issuer shall notify the Trustee of the name and address of any such agent. If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee may appoint a suitably qualified and reputable party to act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.05.
SECTION 2.04. Paying Agent to Hold Money. Not later than 12:00 p.m. (London, England time), one Business Day prior to each due date of the principal, premium, if any, and interest on any Notes, the Issuer shall deposit with the Principal Paying Agent money in immediately available funds in U.S. dollars, sufficient to pay such principal, premium, if any, and interest so becoming due on the due date for payment under the Notes. The Issuer shall procure payment confirmation on or prior to the third Business Day preceding payment. The Principal Paying Agent (and, if applicable, each other Paying Agent) shall remit such payment in a timely manner to the Holders on the relevant due date for payment, it being acknowledged by each Holder that if the Issuer deposits such money with
the Principal Paying Agent after the time specified in the immediately preceding sentence, the Principal Paying Agent shall remit such money to the Holders on the relevant due date for payment, unless such remittance is impracticable having regard to applicable banking procedures and timing constraints, in which case the Principal Paying Agent shall remit such money to the Holders on the next Business Day, but without liability for any interest resulting from such late payment. For the avoidance of doubt, the Principal Paying Agent shall only be obliged to remit money to Holders if it has actually received such money from the Issuer in clear funds. The Principal Paying Agent shall promptly notify the Trustee of any default by the Issuer (or any other obligor on the Notes) in making any payment. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed, and the Trustee may at any time during the continuance of any payment default, upon written request to a Paying Agent, require such Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent shall have no further liability for the money so paid over to the Trustee. If the Issuer or any Affiliate of the Issuer acts as Paying Agent, it shall, on or before each due date of any principal, premium, if any, or interest on the Notes, segregate and hold in a separate trust fund for the benefit of the Holders a sum of money sufficient to pay such principal, premium, if any, or interest so becoming due until such sum of money shall be paid to such Holders or otherwise disposed of as provided in this Indenture, and shall promptly notify the Trustee of its action or failure to act.
The Trustee may, if the Issuer has notified it in writing that the Issuer intends to effect a defeasance or to satisfy and discharge this Indenture in accordance with the provisions of Article Eight, notify the Paying Agent in writing of this fact and require the Paying Agent (until notified by the Trustee to the contrary) to act thereafter as Paying Agent of the Trustee and not the Issuer in relation to any amounts deposited with it in accordance with the provisions of Article Eight.
SECTION 2.05. Holder Lists. The Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee, in writing no later than the Record Date for each Interest Payment Date and at such other times as the Trustee may request in writing, a list, in such form and as of such Record Date as the Trustee may reasonably require, of the names and addresses of Holders, including the aggregate principal amount of Notes held by each Holder.
SECTION 2.06. Transfer and Exchange.
(a) Where Notes are presented to the Registrar or a co-Registrar with a request to register a transfer or to exchange them for an equal principal amount of Notes of other denominations, the Registrar shall register the transfer or make the exchange in accordance with the requirements of this Section 2.06. To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee (or the authenticating agent) shall, upon receipt of an Issuer Order, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes, of any authorized denominations and of a like aggregate principal amount, at the Registrars request; provided that no Note of less than $2,000 may be transferred or exchanged. No service charge shall be made for any registration of transfer or exchange of Notes (except as otherwise expressly permitted herein), but the Issuer may require payment of a sum sufficient to cover any agency fee or similar charge payable in connection with any such registration of transfer or exchange of Notes (other than any agency fee or similar charge payable in connection with any redemption of the Notes or upon exchanges pursuant to Sections 2.10, 3.08 or 9.04) or in accordance with an Asset Sale Offer pursuant to Section 4.09 or Change of Control Offer pursuant to Section 4.11, not involving a transfer.
Upon presentation for exchange or transfer of any Note as permitted by the terms of this Indenture and by any legend appearing on such Note, such Note shall be exchanged or transferred upon the Security Register and one or more new Notes shall be authenticated and issued in the name of the Holder (in the case of exchanges only) or the transferee, as the case may be. No exchange or transfer of a Note shall be effective under this Indenture unless and until such Note has been registered in the name of such Person in the Security Register. Furthermore, the exchange or transfer of any Note shall not be effective under this Indenture unless the request for such exchange or transfer is made by the Holder or by a duly authorized attorney-in-fact at the office of the Registrar.
Every Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuer or the Registrar) be duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Issuer and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer evidencing the same indebtedness, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.
Neither the Issuer nor the Trustee, Registrar or any Paying Agent shall be required (i) to issue, register the transfer of, or exchange any Note during a period beginning at the opening of 15 days before the day of the mailing of a notice of redemption of Notes selected for redemption under Section 3.02 and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(b) Notwithstanding any provision to the contrary herein, so long as a Global Note remains outstanding and is held by or on behalf of DTC, transfers of a Global Note, in whole or in part, or of any beneficial interest therein, shall only be made in accordance with Section 2.01(c), Section 2.06(a) and this Section 2.06(b); provided that a beneficial interest in a Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Global Note in accordance with the transfer restrictions set forth in the restricted Note legend on the Note, if any.
(i) Except for transfers or exchanges made in accordance with either of clauses (ii) or (iii) of this Section 2.06(b), transfers of a Global Note shall be limited to transfers of such Global Note in whole, but not in part, to nominees of DTC or to a successor of DTC or such successors nominee.
(ii) Restricted Global Note to Regulation S Global Note. If the holder of a beneficial interest in the Restricted Global Note at any time wishes to exchange its interest in such Restricted Global Note for an interest in the Regulation S Global Note, or to transfer its interest in such Restricted Global Note to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Regulation S Global Note, such transfer or exchange may be effected, only in accordance with this clause (ii) and the rules and procedures of DTC, in each case to the extent applicable (the Applicable Procedures). Upon receipt by the Registrar from the Transfer Agent of (A) written instructions directing the Registrar to credit or cause to be credited an interest in the Regulation S Global Note in a specified principal amount and to cause to be debited an interest in the Restricted Global Note in such specified principal amount, and (B) a certificate in the form of Exhibit B attached hereto given by the holder of such beneficial interest stating that the transfer of such interest has been made in compliance with the transfer restrictions applicable to the Global Notes and (x) pursuant to and in accordance with Regulation S or (y) that the interest in the Restricted Global Note being transferred is being transferred in a transaction permitted by Rule 144, then the Registrar shall reduce or cause to be reduced the principal amount of the Restricted Global Note and shall cause DTC to increase or cause to be increased the principal amount of the Regulation S Global Note by the aggregate principal amount of the interest in the Restricted Global Note to be exchanged or transferred.
(iii) Regulation S Global Note to Restricted Global Note. If the holder of a beneficial interest in the Regulation S Global Note at any time wishes to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Restricted Global Note, such transfer may be effected only in accordance with this clause (iii) and the Applicable Procedures. Upon receipt by the Registrar from the Transfer Agent of (A) written instructions directing the Registrar to credit or cause to be credited an interest in the Restricted Global Note in a specified principal amount and to cause to be debited an interest in the Regulation S Global Note in such specified principal amount, and (B) a certificate in the form of Exhibit C attached hereto given by the holder of such beneficial interest stating that the transfer of such interest has been made in compliance with the transfer restrictions applicable to the Global Notes and stating that (x) the Person transferring such interest reasonably believes that the Person acquiring such interest is a QIB and is obtaining such interest in a transaction meeting the requirements of Rule 144A and any applicable securities laws of any state of the United States or (y) that the Person transferring such interest is relying on an exemption other than Rule 144A from the registration requirements of the Securities Act and, in such circumstances, such Opinion of Counsel as the Issuer or the Trustee may reasonably request to ensure that the requested transfer or exchange is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, then the Registrar shall reduce or cause to be reduced the principal amount of the Regulation S Global Note and to increase or cause to be
increased the principal amount of the Restricted Global Note by the aggregate principal amount of the interest in such Regulation S Global Note to be exchanged or transferred.
(c) If Notes are issued upon the transfer, exchange or replacement of Notes bearing the restricted Notes legends set forth in Exhibit A attached hereto, the Notes so issued shall bear the restricted Notes legends, and a request to remove such restricted Notes legends from Notes shall not be honored unless there is delivered to the Issuer such satisfactory evidence, which may include an Opinion of Counsel licensed to practice law in the State of New York, as may be reasonably required by the Issuer, that neither the legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A or Rule 144 under the Securities Act. Upon provision of such satisfactory evidence, the Trustee, at the direction of the Issuer, shall (or shall direct the authenticating agent to) authenticate and deliver Notes that do not bear the legend.
(d) The Trustee, the Security Agent and the Agents shall have no responsibility for any actions taken or not taken by DTC, Euroclear or Clearstream, as the case may be.
SECTION 2.07. Replacement Notes. If a mutilated Definitive Registered Note is surrendered to the Registrar or if the Holder claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall (or shall direct the authenticating agent to), upon receipt of an Issuer Order, authenticate a replacement Note in such form as the Note mutilated, lost, destroyed or wrongfully taken if the Holder satisfies any other reasonable requirements of the Issuer and any requirement of the Trustee. If required by the Trustee or the Issuer, such Holder shall furnish an indemnity bond sufficient in the judgment of the Issuer and the Trustee to protect the Issuer, the Trustee, the Security Agent, the Paying Agent, the Transfer Agent, the Registrar and any co-Registrar, and any authenticating agent, from any loss that any of them may suffer if a Note is replaced. The Issuer and the Trustee may charge the Holder for their expenses in replacing a Note.
In the event any such mutilated, lost, destroyed or wrongfully taken Note has become or is about to become due and payable, the Issuer in its discretion may pay such Note instead of issuing a new Note in replacement thereof.
Every replacement Note shall be an additional obligation of the Issuer.
The provisions of this Section 2.07 are exclusive and will preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or wrongfully taken Notes.
SECTION 2.08. Outstanding Notes. Notes outstanding at any time are all Notes authenticated by or on behalf of the Trustee except for those cancelled by it, those delivered to it for cancellation and those described in this Section 2.08 as not outstanding. Subject to Section 2.09, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee and the Issuer receive proof satisfactory to them that the Note that has been replaced is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a Redemption Date or maturity date money sufficient to pay all principal, interest and Additional Amounts, if any, payable on that date with respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.
SECTION 2.09. Notes Held by Issuer. In determining whether the Holders of the required principal amount of Notes have concurred in any direction or consent or any amendment, modification or other change to this Indenture, Notes owned by the Issuer or by any of its Affiliates shall be disregarded and treated as if they were not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent or any amendment, modification or other change to this Indenture, only Notes which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgees right so to act with respect to the Notes and that the pledgee is not the Issuer or any of its Affiliates.
SECTION 2.10. Definitive Registered Notes.
(a) A Global Note deposited with a custodian for DTC pursuant to Section 2.01 shall be transferred in whole to the beneficial owners thereof in the form of Definitive Registered Notes only if such transfer complies with Section 2.06 and (i) DTC notifies the Issuer that it is unwilling or unable to continue to act as depositary for such Global Note or DTC ceases to be registered as a clearing agency under the Exchange Act, and in each case a successor depositary is not appointed by the Issuer within 90 days of such notice, (ii) the Issuer, at its option, executes and delivers to the Trustee an Officers Certificate stating that such Global Note shall be so exchangeable or (iii) the owner of a Book-Entry Interest requests such an exchange in writing delivered through DTC following an Event of Default under this Indenture. Notice of any such transfer shall be given by the Issuer in accordance with the provisions of Section 12.02(a).
(b) Any Global Note that is transferable to the beneficial owners thereof in the form of Definitive Registered Notes pursuant to this Section 2.10 shall be surrendered by the custodian for DTC, to the Transfer Agent, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall itself or via the authenticating agent authenticate and deliver, upon such transfer of each portion of such Global Note, an equal aggregate principal amount at maturity of Notes of authorized denominations in the form of Definitive Registered Notes. Any portion of a Global Note transferred or exchanged pursuant to this Section 2.10 shall be executed, authenticated and delivered only in registered form in minimum denominations of $2,000 and any integral multiples of $1,000 in excess thereof and registered in such names as DTC may direct. Subject to the foregoing, a Global Note is not exchangeable except for a Global Note of like denomination to be registered in the name of DTC or its nominee. In the event that a Global Note becomes exchangeable for Definitive Registered Notes, payment of principal, premium, if any, and interest on the Definitive Registered Notes will be payable, and the transfer of the Definitive Registered Notes will be registrable, at the office or agency of the Issuer maintained for such purposes in accordance with Section 2.03. Such Definitive Registered Notes shall bear the applicable legends set forth in Exhibit A attached hereto.
(c) In the event of the occurrence of any of the events specified in Section 2.10(a), the Issuer shall promptly make available to the Trustee and the authenticating agent a reasonable supply of Definitive Registered Notes in definitive, fully registered form without interest coupons.
SECTION 2.11. Cancellation. The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee, in accordance with its customary procedures, and no one else shall cancel (subject to the record retention requirements of the Exchange Act and the Trustees retention policy) all Notes surrendered for registration of transfer, exchange, payment or cancellation and dispose of such cancelled Notes in its customary manner. Except as otherwise provided in this Indenture, the Issuer may not issue new Notes to replace Notes it has redeemed, paid or delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest. Any interest on any Note that is payable, but is not punctually paid or duly provided for, on the dates and in the manner provided in the Notes and this Indenture (all such interest herein called Defaulted Interest) shall forthwith cease to be payable to the Holder on the relevant Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Issuer, at its election in each case, as provided in clause (a) or (b) below:
(a) The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes are registered at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Issuer may deposit with the Paying Agent an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest; or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held for the benefit of the Persons entitled to such Defaulted Interest as provided in this clause. In addition, the Issuer shall fix a special record date for the payment of such Defaulted Interest, such date to be not more than 15 days and not less than 10 days prior to the proposed payment date and not less than 15 days after the receipt by the Trustee of the notice of the proposed payment date. The Issuer shall promptly but, in any event, not less than 15 days prior to the special record date, notify the Trustee of
such special record date and, in the name and at the expense of the Issuer, the Trustee shall cause notice of the proposed payment date of such Defaulted Interest and the special record date therefor to be mailed first-class, postage prepaid to each Holder as such Holders address appears in the Security Register, not less than 10 days prior to such special record date. Notice of the proposed payment date of such Defaulted Interest and the special record date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes are registered at the close of business on such special record date and shall no longer be payable pursuant to clause (b) below.
(b) The Issuer may make payment of any Defaulted Interest on the Notes in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment date pursuant to this clause, such manner of payment shall be deemed reasonably practicable.
Subject to the foregoing provisions of this Section 2.12, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 2.13. Computation of Interest. Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.14. ISIN and CUSIP Numbers. The Issuer in issuing the Notes may use ISIN and CUSIP numbers (if then generally in use), and, if so, the Trustee shall use ISIN and CUSIP numbers, as appropriate, in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers or codes either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer shall promptly notify the Trustee of any change in the ISIN or CUSIP numbers.
SECTION 2.15. Issuance of Additional Notes. The Issuer may, subject to Section 4.06 of this Indenture, issue Additional Notes under this Indenture in accordance with the procedures of Section 2.02. The Original Notes issued on the Issue Date and any Additional Notes subsequently issued shall be treated as a single class for all purposes under this Indenture.
ARTICLE THREE
REDEMPTION; OFFERS TO PURCHASE
SECTION 3.01. Right of Redemption. The Issuer may redeem all or any portion of the Notes upon the terms and at the Redemption Prices set forth in the Notes. Any redemption pursuant to this Section 3.01 shall be made pursuant to the provisions of this Article Three.
SECTION 3.02. Notices to Trustee. If the Issuer elects to redeem Notes pursuant to Section 3.01, it shall notify the Trustee in writing of the Redemption Date and the record date, the principal amount of Notes to be redeemed, the Redemption Price and the paragraph of the Notes pursuant to which the redemption will occur.
The Issuer shall give each notice to the Trustee provided for in this Section 3.02 in writing at least 10 days before the date notice is mailed to the Holders pursuant to Section 3.04 unless the Trustee consents to a shorter period. Such notice shall be accompanied by an Officers Certificate from the Issuer to the effect that such redemption will comply with the conditions herein. If fewer than all the Notes are to be redeemed, the record date relating to such redemption shall be selected by the Issuer and given to the Trustee, which record date shall be not less than 15 days after the date of notice to the Trustee.
SECTION 3.03. Selection of Notes to Be Redeemed. If fewer than all of the Notes are to be redeemed at any time, the Trustee shall select the Notes to be redeemed by a method that complies with the requirements, as certified to it by the Issuer, of the principal securities exchange, if any, on which the Notes are listed at such time,
and in compliance with the requirements of the relevant clearing system or, if the Notes are not listed on a securities exchange, or such securities exchange prescribes no method of selection and the Notes are not held through clearing system or the clearing system prescribes no method of selection, on a pro rata basis, by lot or by such other method as the Trustee deems fair and appropriate; provided, however, that no such partial redemption shall reduce the portion of the principal amount of a Note not redeemed to less than $2,000.
The Trustee shall make the selection from the Notes outstanding and not previously called for redemption. The Trustee may select for redemption portions equal to $1,000 in principal amount and any integral multiple thereof; provided that no Notes of $2,000 in principal amount or less may be redeemed in part. Provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption. The Trustee shall notify the Issuer promptly in writing of the Notes or portions of Notes to be called for redemption.
The Trustee shall not be liable for selections made in accordance with the provisions of this Section 3.03 or for selections made by DTC.
Any redemption and notice may, in the Issuers discretion, be subject to the satisfaction of one or more conditions precedent.
SECTION 3.04. Notice of Redemption.
(a) At least 10 days but not more than 60 days before a date for redemption of the Notes, the Issuer shall mail a notice of redemption by first-class mail to each Holder to be redeemed at its address contained in the Security Register, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture, and shall comply with the provisions of Section 12.02(b).
(b) The notice shall identify the Notes to be redeemed (including ISIN and CUSIP numbers) and shall state:
(i) the Redemption Date and the record date;
(ii) the appropriate calculation of the Redemption Price and the amount of accrued interest, if any, and Additional Amounts, if any, to be paid;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price plus accrued interest, if any, and Additional Amounts, if any;
(v) that, if any Note is being redeemed in part, the portion of the principal amount (equal to $1,000 in principal amount or any integral multiple thereof) of such Note to be redeemed and that, on and after the Redemption Date, upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion thereof will be reissued;
(vi) that, if any Note contains an ISIN or CUSIP number, no representation is being made as to the correctness of such ISIN or CUSIP number either as printed on the Notes or as contained in the notice of redemption and that reliance may be placed only on the other identification numbers printed on the Notes;
(vii) that, unless the Issuer and the Guarantors default in making such redemption payment, interest on the Notes (or portion thereof) called for redemption shall cease to accrue on and after the Redemption Date; and
(viii) the paragraph of the Notes pursuant to which the Notes called for redemption are being redeemed.
At the Issuers written request, the Trustee shall give a notice of redemption in the Issuers name and at the Issuers expense. In such event, the Issuer shall provide the Trustee with the notice and the other information required by this Section 3.04.
For Notes which are represented by global certificates held on behalf of DTC, notices may be given by delivery of the relevant notices to DTC for communication to entitled account holders in substitution for the aforesaid mailing.
SECTION 3.05. Deposit of Redemption Price. At least one Business Day prior to any Redemption Date, by no later than 12:00 p.m. (London, England time) on that date, the Issuer shall deposit or cause to be deposited with the Paying Agent (or, if the Issuer or any of its Affiliates is the Paying Agent, shall segregate and hold in trust) a sum in same day funds sufficient to pay the Redemption Price of and accrued interest and Additional Amounts, if any, on all Notes to be redeemed on that date other than Notes or portions of Notes called for redemption that have previously been delivered by the Issuer to the Trustee for cancellation. The Paying Agent shall return to the Issuer following a written request by the Issuer any money so deposited that is not required for that purpose.
SECTION 3.06. Special Mandatory Redemption.. In the event that (a) all amounts outstanding under the New Build Facility have not been permanently repaid (together with the cancellation of all remaining commitments thereunder) on or prior to the Escrow Long Stop Date or (b) final delivery of the Silver Muse has not been made pursuant to the New Build Agreement (as amended to the date of the Offering Memorandum and without any subsequent change to the terms thereof that are materially adverse to the interests of the Holders) by the Escrow Long Stop Date, or (c) there is an event of bankruptcy, insolvency or court protection with respect to the Parent Guarantor or the Issuer on or prior to the Escrow Long Stop Date (the date of any such event being the Special Termination Date), the Issuer will redeem, in the case of clause (a) or (c), all of the Notes or, in the case of clause (b) (so long as neither clause (a) nor (c) is applicable), $275.0 million aggregate principal amount of the Notes (the Special Mandatory Redemption) on a pro rata basis, in each case, at a price (the Special Mandatory Redemption Price) equal to 100% of the aggregate issue price of the Notes, plus accrued but unpaid interest and Additional Amounts, if any, from the Issue Date to the date of redemption (subject to the right of Holders on the relevant Record Date to receive interest due on the relevant Interest Payment Date).
Notice of the Special Mandatory Redemption will be delivered by the Issuer, no later than one Business Day following the Special Termination Date, to the Trustee, the Principal Paying Agent and the Escrow Agent, and will provide that the Notes shall be redeemed on a date that is no later than the fifth Business Day after such notice is given by the Issuer in accordance with the terms of the Escrow Agreement (the Special Mandatory Redemption Date). On the Special Mandatory Redemption Date, the Escrow Agent shall pay to the Principal Paying Agent for payment to each Holder the Special Mandatory Redemption Price for such Holders Notes and, concurrently with the payment to such Holders, deliver any excess escrowed funds to the Issuer.
SECTION 3.07. Payment of Notes Called for Redemption. If notice of redemption has been given in the manner provided below, the Notes or portion of Notes specified in such notice to be redeemed shall become due and payable on the Redemption Date at the Redemption Price stated therein, together with accrued interest to such Redemption Date, and on and after such date (unless the Issuer shall default in the payment of such Notes at the Redemption Price and accrued interest to the Redemption Date, in which case the principal, until paid, shall bear interest from the Redemption Date at the rate prescribed in the Notes) such Notes shall cease to accrue interest. Upon surrender of any Note for redemption in accordance with a notice of redemption, such Note shall be paid and redeemed by the Issuer at the Redemption Price, together with accrued interest, if any, to the Redemption Date; provided that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders registered as such at the close of business on the relevant Record Date.
Notice of redemption shall be deemed to be given when mailed, whether or not the Holder receives the notice. In any event, failure to give such notice, or any defect therein, shall not affect the validity of the proceedings for the redemption of Notes held by Holders to whom such notice was properly given.
SECTION 3.08. Notes Redeemed in Part.
(a) Upon surrender of a Global Note that is redeemed in part, the Paying Agent shall forward such Global Note to the Registrar who shall make a notation on the Security Register to reduce the principal amount of such Global Note to an amount equal to the unredeemed portion of the Global Note surrendered; provided that each such Global Note shall be in a principal amount at final Stated Maturity of $2,000 or an integral multiple of $1,000 in excess thereof.
(b) Upon surrender and cancellation of a Definitive Registered Note that is redeemed in part, the Issuer shall execute and the Trustee shall authenticate for the Holder (at the Issuers expense) a new Note equal in principal amount to the unredeemed portion of the Note surrendered and canceled; provided that each such Definitive Registered Note shall be in a principal amount at final Stated Maturity of $2,000 or an integral multiple of $1,000 in excess thereof.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes. The Issuer and the Guarantors, jointly and severally, covenant and agree for the benefit of the Holders that they shall duly and punctually pay the principal of, premium, if any, interest and Additional Amounts, if any, on the Notes on the dates and in the manner provided in the Notes and in this Indenture. Subject to Section 2.04, principal, premium, if any, interest and Additional Amounts, if any, shall be considered paid on the date due if on such date the Trustee or the Paying Agent (other than the Issuer or any of its Affiliates) holds, as of 10:00 a.m. (London, England time) on the due date, in accordance with this Indenture, money sufficient to pay all principal, premium, if any, interest and Additional Amounts, if any, then due. If the Issuer or any of its Affiliates acts as Paying Agent, principal, premium, if any, interest and Additional Amounts, if any, shall be considered paid on the due date if the entity acting as Paying Agent complies with Section 2.04.
The Issuer or the Guarantors shall pay interest on overdue principal at the rate specified therefor in the Notes. The Issuer or the Guarantors shall pay interest on overdue installments of interest at the same rate to the extent lawful.
SECTION 4.02. Corporate Existence. Subject to Article Five, the Issuer, the Parent Guarantor and each Restricted Subsidiary shall do or cause to be done all things necessary to preserve and keep in full force and effect their corporate, partnership, limited liability company or other existence and the rights (charter and statutory), licenses and franchises of the Issuer, the Parent Guarantor and each Restricted Subsidiary; provided that neither the Issuer nor the Parent Guarantor shall be required to preserve any such right, license or franchise if the Board of Directors of the Issuer or the Parent Guarantor shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer, the Parent Guarantor and the Restricted Subsidiaries as a whole and that the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 4.03. Maintenance of Properties. The Parent Guarantor shall cause all properties owned by it or any Restricted Subsidiary or used or held for use in the conduct of its business or the business of any Restricted Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and shall cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Parent Guarantor may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided that nothing in this Section 4.03 shall prevent the Parent Guarantor from discontinuing the maintenance of any such properties if such discontinuance is, in the judgment of the Parent Guarantor, desirable in the conduct of the business of the Issuer, the Parent Guarantor and the Restricted Subsidiaries as a whole and not disadvantageous in any material respect to the Holders.
SECTION 4.04. Insurance. The Parent Guarantor shall maintain, and shall cause the Restricted Subsidiaries to maintain, insurance with carriers believed by the Parent Guarantor to be responsible, against such risks and in such amounts, and with such deductibles, retentions, self-insured amounts and coinsurance provisions, as the Parent Guarantor believes are customarily carried by businesses similarly situated and owning like properties, including as appropriate general liability, property and casualty loss and interruption of business insurance.
SECTION 4.05. Statement as to Compliance.
(a) The Parent Guarantor shall deliver to the Trustee, within 120 days after the end of each fiscal year or within 14 days of written request by the Trustee, an Officers Certificate stating that in the course of the performance by the signer of its duties as an Officer of the Parent Guarantor he would normally have knowledge of any Default and whether or not the signer knows of any Default that occurred during such period and, if any, specifying such Default, its status and what action the Parent Guarantor is taking or proposed to take with respect thereto. For purposes of this Section 4.05(a), such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.
(b) If the Parent Guarantor or the Issuer shall become aware that (i) any Default or Event of Default has occurred and is continuing or (ii) any Holder seeks to exercise any remedy hereunder with respect to a claimed Default under this Indenture or the Notes, the Parent Guarantor or the Issuer, as the case may be, shall immediately deliver to the Trustee an Officers Certificate specifying such event, notice or other action (including any action the Parent Guarantor or the Issuer is taking or propose to take in respect thereof).
SECTION 4.06. Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) The Parent Guarantor shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, incur) any Indebtedness (including Acquired Debt), and the Parent Guarantor shall not and shall not permit any Restricted Subsidiary to issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Issuer may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and the Guarantors may incur Indebtedness (including Acquired Debt) or issue preferred stock, if the Fixed Charge Coverage Ratio for the Parent Guarantors most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.
(b) Section 4.06(a) shall not, however, prohibit the incurrence of any of the following items of Indebtedness (collectively, Permitted Debt):
(1) the incurrence by the Parent Guarantor and its Restricted Subsidiaries of Existing Indebtedness (other than Indebtedness under the Revolving Credit Facility);
(2) the incurrence by the Parent Guarantor and any Restricted Subsidiary of Indebtedness under Credit Facilities in an aggregate principal amount at any time outstanding not to exceed the greater of $60.0 million and 60% of Consolidated EBITDA of the Parent Guarantor for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred;
(3) the incurrence by the Issuer and the Guarantors of Indebtedness represented by the Notes issued on the Issue Date and the related Note Guarantees;
(4) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Indebtedness represented by Attributable Debt, Capital Lease Obligations, mortgage financings or purchase money obligations, the issuance by the Parent Guarantor or any Restricted Subsidiary of Disqualified Stock and the issuance by any Restricted Subsidiary of preferred stock (but excluding, in any such case, any French Tax Lease unless financing a vessel that does not constitute Collateral), in each case, incurred or issued for the purpose of financing all or any part of the purchase price, lease expense, rental payments or cost of design, construction, installation, repair, replacement or improvement of property (including Vessels), plant or equipment or other assets (including Capital Stock) used in the business of the Parent Guarantor or any of
its Restricted Subsidiaries, in an aggregate principal amount or liquidation preference, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred or Disqualified Stock or preferred stock issued pursuant to this clause (4), not to exceed the greater of $20.0 million and 1.5% of Total Tangible Assets at any time outstanding (it being understood that any such Indebtedness may be incurred and such Disqualified Stock and preferred stock may be issued after the acquisition, purchase, charter, leasing or rental or the design, construction, installation, repair, replacement or the making of any improvement with respect to any asset (including Vessels)); provided that the principal amount of any Indebtedness, Disqualified Stock or preferred stock permitted under this clause (4) did not in each case at the time of incurrence exceed, together with amounts previously incurred and outstanding under this clause (4) with respect to such Vessel, (i) in the case of a completed Vessel, the Appraised Market Value and (ii) in the case of an uncompleted Vessel, 80% of the contract price for the acquisition or construction of such Vessel, in the case of this clause (ii), as determined on the date on which the agreement for acquisition or construction of such Vessel was entered into by the Parent Guarantor or its Restricted Subsidiary, plus any other Ready for Sea Cost of such Vessel plus 100% of any related export credit insurance premium;
(5) the incurrence by any Restricted Subsidiary of Indebtedness, the issuance by the Parent Guarantor or any Restricted Subsidiary of Disqualified Stock and the issuance by any Restricted Subsidiary of preferred stock in connection with any New Vessel Financing or French Tax Lease in an aggregate principal amount at any one time outstanding (including all Permitted Refinancing Indebtedness and any French Tax Lease incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred or Disqualified Stock or preferred stock issued under this clause (5)) not exceeding the New Vessel Aggregate Secured Debt Cap as calculated on the date of the relevant incurrence under this clause (5);
(6) Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge, any Indebtedness (other than intercompany Indebtedness, Disqualified Stock or preferred stock) that was permitted to be incurred under Section 4.06(a) or clause (1), (3), (5), (6) or (12) of this Section 4.06(b);
(7) the incurrence by the Parent Guarantor or any Restricted Subsidiary of intercompany Indebtedness between or among the Parent Guarantor or any Restricted Subsidiary; provided that:
(a) if the Issuer or any Guarantor is the obligor on such Indebtedness and the payee is not the Issuer or a Guarantor, such Indebtedness must be unsecured and ((i) except in respect of the intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Parent Guarantor and its Restricted Subsidiaries and (ii) only to the extent legally permitted (the Parent Guarantor and its Restricted Subsidiaries having completed all procedures required in the reasonable judgment of directors or officers of the obligee or obligor to protect such Persons from any penalty or civil or criminal liability in connection with the subordination of such Indebtedness)) expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Issuer, or the Note Guarantee, in the case of a Guarantor; and
(b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Parent Guarantor or a Restricted Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Parent Guarantor or a Restricted Subsidiary, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Parent Guarantor or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (7);
(8) the issuance by any Restricted Subsidiary to the Parent Guarantor or to any of its Restricted Subsidiaries of preferred stock; provided that (i) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Parent Guarantor or a Restricted Subsidiary and (ii) any sale or other transfer of any such preferred stock to a Person that is not either the Parent Guarantor or a Restricted Subsidiary, will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (8);
(9) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Hedging Obligations and not for speculative purposes;
(10) the Guarantee by the Parent Guarantor or any Restricted Subsidiary of Indebtedness of the Parent Guarantor or any Restricted Subsidiary to the extent that the guaranteed Indebtedness was permitted to be incurred by another provision of this Section 4.06; provided that, in each case, if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes or a Note Guarantee, then the Guarantee must be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(11) the incurrence by the Parent Guarantor or any of its Restricted Subsidiaries of Indebtedness (i) in respect of workers compensation claims, self-insurance obligations, captive insurance companies and bankers acceptances in the ordinary course of business; (ii) in respect of letters of credit, surety, bid, performance, travel or appeal bonds, completion guarantees, judgment, advance payment, customs, VAT or other tax guarantees or similar instruments issued in the ordinary course of business of such Person or consistent with past practice or industry practice (including as required by any governmental authority) and not in connection with the borrowing of money, including letters of credit or similar instruments in respect of self-insurance and workers compensation obligations, or for the protection of customer deposits or credit card payments; provided, however, that upon the drawing of such letters of credit or other instrument, such obligations are reimbursed within 30 days following such drawing; (iii) arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within 30 days; and (iv) consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations contained in supply agreements, in each case, in the ordinary course of business;
(12) Indebtedness, Disqualified Stock or preferred stock (i) of any Person outstanding on the date on which such Person becomes a Restricted Subsidiary or is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Parent Guarantor or any Restricted Subsidiary or (ii) incurred or issued to provide all or any portion of the funds used to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent Guarantor or a Restricted Subsidiary; provided, however, with respect to this clause (12), that at the time of the acquisition or other transaction pursuant to which such Indebtedness, Disqualified Stock or preferred stock was deemed to be incurred or issued, (x) the Parent Guarantor would have been able to incur $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a) after giving pro forma effect to the relevant acquisition or other transaction and the incurrence of such Indebtedness or issuance of such Disqualified Stock or preferred stock pursuant to this clause (12) or (y) the Fixed Charge Coverage Ratio for the Parent Guarantors most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or Disqualified Stock or preferred stock is issued pursuant to this clause (12), taken as one period, would not be less than it was immediately prior to giving pro forma effect to such acquisition or other transaction and the incurrence of such Indebtedness or issuance of such Disqualified Stock or preferred stock;
(13) Indebtedness arising from agreements of the Parent Guarantor or a Restricted Subsidiary providing for customary indemnification, obligations in respect of earnouts or other adjustments of purchase price or, in each case, similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Equity Interests of a Subsidiary; provided that (in the case of a disposition) the maximum liability of the Parent Guarantor and its Restricted Subsidiaries in respect of all such Indebtedness shall at no time exceed the gross proceeds, including the Fair Market Value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Parent Guarantor and its Restricted Subsidiaries in connection with such disposition;
(14) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Indebtedness in the form of Unearned Customer Deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(15) Indebtedness of the Parent Guarantor or any Restricted Subsidiary incurred in connection with credit card processing arrangements entered into in the ordinary course of business;
(16) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Indebtedness, the issuance by the Parent Guarantor or any Restricted Subsidiary of Disqualified Stock and the issuance by any Restricted Subsidiary of preferred stock to finance the replacement (through construction or acquisition) of a Vessel upon an Event of Loss of such Vessel in an aggregate amount no greater than the Ready for Sea Cost for such replacement Vessel, in each case less all compensation, damages and other payments (including insurance proceeds other than in respect of business interruption insurance) received by the Parent Guarantor or any of its Restricted Subsidiaries from any Person in connection with such Event of Loss in excess of amounts actually used to repay Indebtedness secured by the Vessel subject to such Event of Loss and any costs and expenses incurred by the Parent Guarantor or any of its Restricted Subsidiaries in connection with such Event of Loss;
(17) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Indebtedness in relation to (i) regular maintenance required on any of the Vessels owned or chartered by the Parent Guarantor or any of its Restricted Subsidiaries, and (ii) any expenditures that are, or are reasonably expected to be, recoverable from insurance on such Vessels;
(18) the incurrence of Indebtedness by the Parent Guarantor or any Restricted Subsidiary of Indebtedness, the issuance by the Parent Guarantor or any Restricted Subsidiary of Disqualified Stock and the issuance by any Restricted Subsidiary of preferred stock in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred or Disqualified Stock or preferred stock issued pursuant to this clause (18), not to exceed the greater of $10.0 million and 0.75% of Total Tangible Assets;
(19) the Guarantee by the Parent Guarantor or any Restricted Subsidiary of Indebtedness of a Tax Lease Counterparty under a French Tax Lease; provided that (i) the guaranteed Indebtedness was incurred in connection with a French Tax Lease that replaces, refinances or discharges or is the assumption or novation of a New Vessel Financing incurred in accordance with this Section 4.06; (ii) any such Guarantee must be unsecured and (iii) the amount of the guaranteed Indebtedness does not exceed (x) the principal amount (or accreted value, if applicable, or if issued with original issue discount, aggregate issue price or, if greater, committed amount (only to the extent the committed amount could have been incurred on the date of initial incurrence)) of the Indebtedness (plus the amount of accrued and unpaid interest or dividends on and the amount of all fees and expenses, including premiums, incurred in connection with the incurrence or issuance of, such Indebtedness or the implementation of the French Tax Lease), replaced, refinanced, discharged (or if the amount of such guaranteed Indebtedness is greater than such amount, such Guarantee is limited to such lesser amount) plus (y) 10% of the contract price for the acquisition or construction and any other Ready for Sea Cost of the related Vessel (and 100% of any related export credit insurance premium); and
(20) the assumption by the Parent Guarantor or any Restricted Subsidiary of the Indebtedness of a Tax Lease Counterparty in connection with the acquisition of such Tax Lease Counterparty upon the cancellation, dissolution or unwinding (or other transaction with similar effect) of the related French Tax Lease; provided that such Indebtedness shall be limited to the amount of Indebtedness incurred by such Tax Lease Counterparty in connection with such French Tax Lease.
(c) Neither the Issuer nor any Guarantor shall incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Issuer or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Issuer or any Guarantor solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.06, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (20) of Section 4.06(b), or is entitled to be incurred pursuant to Section 4.06(a), the Parent Guarantor, in its sole discretion, will be permitted to classify such item of Indebtedness on the date of its incurrence and only be required to include the amount and type of such Indebtedness in one of such clauses and will be permitted on the date of such incurrence to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in Sections 4.06(a) and (b) and from time to time to reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.06.
(e) The accrual of interest or preferred stock dividends, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, the payment of dividends on preferred stock or Disqualified Stock in the form of additional shares of the same class of preferred stock or Disqualified Stock, the accretion of liquidation preference and the increase in the amount of Indebtedness outstanding solely as a result of fluctuations in exchange rates or currency values will not be deemed to be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this Section 4.06; provided, in each such case, that the amount of any such accrual, accretion, amortization, payment, reclassification or increase is included in the Fixed Charges of the Parent Guarantor as accrued.
(f) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a different currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred or, in the case of Indebtedness incurred under a revolving credit facility and at the option of the Parent Guarantor, first committed; provided that (a) if such Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than U.S. dollars, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing indebtedness does not exceed the aggregate principal amount of such Indebtedness being refinanced; and (b) if and for so long as any Indebtedness is subject to a Hedging Obligation with respect to the currency in which such Indebtedness is denominated covering principal amounts payable on such Indebtedness, the amount of such Indebtedness, if denominated in U.S. dollars, will be the amount of the principal payment required to be made under such Hedging Obligation and, otherwise, the U.S. dollar-equivalent of such amount plus the U.S. dollar-equivalent of any premium which is at such time due and payable but is not covered by such Hedging Obligation.
(g) Notwithstanding any other provision of this Section 4.06, the maximum amount of Indebtedness that the Parent Guarantor or any Restricted Subsidiary may incur pursuant to this Section 4.06 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, will be calculated based on the currency exchange rate applicable to the currencies in which such Permitted Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.
(h) The amount of any Indebtedness outstanding as of any date will be:
(i) in the case of any Indebtedness issued with original issue discount, the amount of the liability in respect thereof determined in accordance with IFRS;
(ii) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(iii) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Indebtedness of the other Person.
SECTION 4.07. Liens.
(a) The Parent Guarantor shall not and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind securing Indebtedness upon any of their property or assets, now owned or hereafter acquired, except (1) in the case of any property or assets that do not constitute Collateral, (A) Permitted Liens or (B) Liens on property or assets that are not Permitted Liens if, contemporaneously with (or prior to) the incurrence of such Lien, all payments due under this Indenture and the Notes (or the relevant Note Guarantee, in the case of Liens on property or assets of a Guarantor) are secured on an equal and ratable basis with or prior to the obligations so secured until such time as such obligations are no longer secured by a Lien; provided that, if the Indebtedness secured by such Lien is subordinate or junior in right of payment to the Notes or a Note Guarantee, as the case may be, then the Lien securing such Indebtedness shall be subordinate or junior in priority to the Lien securing the Notes or the Note Guarantee, as the case may be, at least to the same extent as such Indebtedness is subordinate or junior to the Notes or a Note Guarantee, as the case may be, and (2) in the case of any property or assets that constitute Collateral, Permitted Collateral Liens.
(b) With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The Increased Amount of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms or in the form of common stock of the Parent Guarantor, the payment of dividends on preferred stock in the form of additional shares of preferred stock of the same class, the accretion of liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness.
(c) Any Lien created in favor of this Indenture and the Notes or a Note Guarantee pursuant to Section 4.07(a)(1)(B) will be automatically and unconditionally released and discharged (i) upon the release and discharge of the initial Lien to which it relates and (ii) otherwise as set forth under Section 11.04.
SECTION 4.08. Restricted Payments.
(a) The Parent Guarantor shall not, and shall not cause or permit any Restricted Subsidiary to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Parent Guarantors or any of its Restricted Subsidiaries Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Parent Guarantor or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Parent Guarantors or any of its Restricted Subsidiaries Equity Interests in their capacity as holders (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Parent Guarantor or in Subordinated Shareholder Funding and other than dividends or distributions payable to the Parent Guarantor or a Restricted Subsidiary);
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Parent Guarantor) any Equity Interests of the Parent Guarantor or any direct or indirect parent entity of the Parent Guarantor;
(3) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness of the Issuer or any Guarantor that is expressly contractually subordinated in right of payment to the Notes or to any Note Guarantee (excluding any intercompany Indebtedness between or among the Parent Guarantor and any of its Restricted Subsidiaries), except (i) a payment of principal at the Stated Maturity thereof or (ii) the purchase, repurchase, redemption, defeasance or other acquisition of Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or scheduled maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition, or make any cash interest payment on, or purchase,
repurchase, redeem, defease or otherwise acquire or retire for value, any Subordinated Shareholder Funding; or
(4) make any Restricted Investment
(all such payments and other actions set forth in these clauses (1) through (4) above being collectively referred to as Restricted Payments), unless, at the time of any such Restricted Payment:
(i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;
(ii) the Parent Guarantor would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Parent Guarantor and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (1) (without duplication of amounts paid pursuant to any other clause of Section 4.08(b)), (2), (3), (4), (5), (6), (7) and (9) of Section 4.08(b)), is less than the sum, without duplication, of:
(A) 50% of the Consolidated Net Income of the Parent Guarantor for the period (taken as one accounting period) from the first day of the fiscal quarter commencing immediately following the fiscal quarter in which the Issue Date occurs to the end of the Parent Guarantors most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus
(B) 100% of the aggregate net cash proceeds and the Fair Market Value of marketable securities received by the Parent Guarantor since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Parent Guarantor (other than Disqualified Stock) or Subordinated Shareholder Funding or from the issue or sale of convertible or exchangeable Disqualified Stock of the Parent Guarantor or any Restricted Subsidiary or convertible or exchangeable debt securities of the Parent Guarantor or any Restricted Subsidiary, in each case that have been converted into or exchanged for Equity Interests of the Parent Guarantor or Subordinated Shareholder Funding (other than (x) net cash proceeds and marketable securities received from an issuance or sale of Equity Interests, Disqualified Stock or convertible or exchangeable debt securities sold to a Subsidiary of the Parent Guarantor, (y) net cash proceeds and marketable securities received from an issuance or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities that have been converted into, exchanged or redeemed for Disqualified Stock and (z) net cash proceeds and marketable securities to the extent any Restricted Payment has been made from such proceeds pursuant to clause (4) of Section 4.08(b)); plus
(C) to the extent that any Restricted Investment that was made after the Issue Date is (i) sold, disposed of or otherwise cancelled, liquidated or repaid, 100% of the aggregate amount received in cash and the Fair Market Value of marketable securities received; or (ii) made in an entity that subsequently becomes a Restricted Subsidiary, 100% of the Fair Market Value of the Parent Guarantors Restricted Investment as of the date such entity becomes a Restricted Subsidiary; plus
(D) to the extent that any Unrestricted Subsidiary of the Parent Guarantor designated as such after the Issue Date is redesignated as a Restricted Subsidiary, or is merged or consolidated into the Parent Guarantor or a Restricted Subsidiary, or all of the assets of such Unrestricted
Subsidiary are transferred to the Parent Guarantor or a Restricted Subsidiary, in each case, after the Issue Date, the Fair Market Value of the Parent Guarantors Restricted Investment in such Subsidiary as of the date of such redesignation, merger, consolidation or transfer of assets to the extent such investments reduced the restricted payments capacity under this clause (iii) and were not previously repaid or otherwise reduced; provided, however, that no amount will be included in Consolidated Net Income of the Parent Guarantor for purposes of the preceding clause (A) to the extent that it is included under this clause (D); plus
(E) 100% of any dividends or distributions received by the Parent Guarantor or a Restricted Subsidiary after the Issue Date from an Unrestricted Subsidiary to the extent that such dividends or distributions were not otherwise included in the Consolidated Net Income of the Parent Guarantor for such period (excluding, for the avoidance of doubt, repayments of, or interest payments in respect of, any Permitted Investment pursuant to clause (16) of the definition thereof).
(b) The preceding provisions will not prohibit:
(1) the payment of any dividend or distribution or the consummation of any redemption within 60 days after the date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or distribution or redemption payment would have complied with the provisions of this Indenture;
(2) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Parent Guarantor) of, Equity Interests of the Parent Guarantor (other than Disqualified Stock) or Subordinated Shareholder Funding or from the substantially concurrent contribution of common equity capital to the Parent Guarantor; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(B) of Section 4.08(a) and will not be considered to be net cash proceeds from an Equity Offering for purposes of the provisions of paragraph 6 of the Notes;
(3) the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Parent Guarantor or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(4) so long as no Default or Event of Default has occurred and is continuing, the purchase, repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Parent Guarantor or any Restricted Subsidiary held by any current or former officer, director, employee or consultant of the Parent Guarantor or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, restricted stock grant, shareholders agreement or similar agreement; provided that the aggregate price paid for all such purchased, repurchased, redeemed, acquired or retired Equity Interests may not exceed $1.0 million in the aggregate in any twelve-month period with unused amounts being carried over to any subsequent twelve-month period subject to a maximum aggregate amount of $2.0 million being available in any twelve-month period; and provided, further, that such amount in any twelve-month period may be increased by an amount not to exceed the cash proceeds from the sale of Equity Interests of the Parent Guarantor or Subordinated Shareholder Funding, in each case, received by the Parent Guarantor during such twelve-month period, in each case to members of management, directors or consultants of the Parent Guarantor, any of its Restricted Subsidiaries or any of its direct or indirect parent companies to the extent the cash proceeds from the sale of such Equity Interests or Subordinated Shareholder Funding have not otherwise been applied to the making of Restricted Payments pursuant to clause (c) of the preceding paragraph or clause (2) of this paragraph or to an optional redemption of the Notes pursuant to the provisions of paragraph 6 of the Notes;
(5) the repurchase of Equity Interests deemed to occur upon the exercise of stock options to the extent such Equity Interests represent a portion of the exercise price of those stock options;
(6) so long as no Default or Event of Default has occurred and is continuing, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Parent Guarantor or any preferred stock of any Restricted Subsidiary issued on or after the Issue Date in accordance with Section 4.06;
(7) payments of cash, dividends, distributions, advances or other Restricted Payments by the Parent Guarantor or any of its Restricted Subsidiaries to allow the payment of cash in lieu of the issuance of fractional shares upon (i) the exercise of options or warrants or (ii) the conversion or exchange of Capital Stock of any such Person;
(8) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary to the holders of its Equity Interests (other than the Parent Guarantor or any Restricted Subsidiary) on no more than a pro rata basis;
(9) so long as no Default or Event of Default has occurred and is continuing, other Restricted Payments in an aggregate amount not to exceed $20.0 million since the Issue Date; and
(10) so long as no Default or Event of Default has occurred and is continuing, other Restricted Payments in an aggregate amount not to exceed $1.0 million since the Issue Date.
The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Parent Guarantor or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
SECTION 4.09. Asset Sales.
(a) The Parent Guarantor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(1) the Parent Guarantor (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset Sale by the Parent Guarantor or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(a) any liabilities, as recorded on the balance sheet of the Parent Guarantor or any Restricted Subsidiary (other than contingent liabilities), that are assumed by the transferee of any such assets and as a result of which the Parent Guarantor and its Restricted Subsidiaries are no longer obligated with respect to such liabilities or are indemnified against further liabilities;
(b) any securities, notes or other obligations received by the Parent Guarantor or any such Restricted Subsidiary from such transferee that are converted by the Parent Guarantor or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of the Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion;
(c) any Capital Stock or assets of the kind referred to in clauses (2) or (4) of Section 4.09(b);
(d) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Parent Guarantor and each other Restricted Subsidiary are released from any Guarantee of such Indebtedness in connection with such Asset Sale;
(e) consideration consisting of Indebtedness of the Issuer or any Guarantor received from Persons who are not the Parent Guarantor or any Restricted Subsidiary; and
(f) consideration other than cash, Cash Equivalents or Replacement Assets received by the Parent Guarantor or any Restricted Subsidiary in Asset Sales with a Fair Market Value not exceeding $10.0 million in the aggregate outstanding at any one time.
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, any Event of Loss or any French Tax Lease, the Parent Guarantor (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to purchase the Notes pursuant to an offer to all Holders at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest to (but not including) the date of purchase (a Notes Offer);
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business; provided that (i) after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary and (ii) to the extent the assets that were the subject of such Asset Sale, Event of Loss or French Tax Lease comprised part of the Collateral, the assets comprising such Permitted Business shall also be pledged as Collateral;
(3) to make a capital expenditure; provided that to the extent the assets that were the subject of such Asset Sale or Event of Loss comprised part of the Collateral, such capital expenditures shall be made in respect of assets that are Collateral;
(4) to acquire other assets (other than Capital Stock) not classified as current assets under IFRS that are used or useful in a Permitted Business; provided that to the extent the assets that were the subject of such Asset Sale or Event of Loss comprised part of the Collateral, the assets being acquired shall also be pledged as Collateral;
(5) to repurchase, prepay, redeem or repay Indebtedness (a) incurred under Section 4.06(b)(2) that is secured by a Lien on the Collateral; provided that in connection with any repurchase, prepayment, redemption or repayment of revolving credit Indebtedness pursuant to this clause (a), the Parent Guarantor or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment to be permanently reduced in an amount equal to the principal amount so repurchased, prepaid, redeemed or repaid; (b)upon the sale of assets that do not constitute Collateral, of a Restricted Subsidiary which is not the Issuer or a Guarantor (other than Indebtedness owed to the Parent Guarantor or another Restricted Subsidiary), or Indebtedness of the Issuer or any Guarantor that is secured by a Lien (provided that the assets secured by such Lien do not constitute Collateral) or (c) of the Issuer or a Guarantor which is secured by a Lien on the Collateral and which is pari passu in right of payment with the Notes or any Note Guarantee; provided that, in the case of this clause (c), the Parent Guarantor (or the applicable Restricted Subsidiary) may repurchase, prepay, redeem or repay such pari passu Indebtedness only if the Parent Guarantor (or the applicable Restricted Subsidiary) makes an offer to all Holders to purchase their Notes in accordance with the provisions set forth below for an Asset Sale Offer for an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such pari passu Indebtedness;
(6) to enter into a binding commitment to apply the Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.09(b); provided that such binding commitment (or any subsequent commitments replacing the initial commitment that may be cancelled or terminated) shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure is consummated and (y) the 180th day following the expiration of the aforementioned 360 day period; or
(7) any combination of the foregoing;
provided that in the case of clauses (2), (3) and (4), the Parent Guarantor (or the applicable Restricted Subsidiary, as the case may be), notwithstanding the proviso to each such clause, may choose to apply such Net Proceeds to acquire assets or Capital Stock of another Permitted Business, make capital expenditures and acquire assets, in each case, that are not Collateral so long as on the earlier of (i) the date of reinvestment of such Net Proceeds and (ii) the date on which the Parent Guarantor or the applicable Restricted Subsidiary enters into a binding commitment to reinvest such Net Proceeds from any Asset Sale, Event of Loss or French Tax Lease relating to Collateral, after giving pro forma effect to such application and any related transaction, the Loan-to-Value Ratio does not exceed 45%.
Pending the final application of any Net Proceeds, the Parent Guarantor (or the applicable Restricted Subsidiary) may temporarily reduce borrowings under any revolving credit facility, including the Revolving Credit Facility, or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales or an Event of Loss that are not applied or invested as provided in Section 4.09(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes as described in clauses (1) or (5) above shall be deemed to have been applied or invested whether or not such Notes Offer is accepted) will constitute Excess Proceeds. When the aggregate amount of Excess Proceeds exceeds $20.0 million, within ten Business Days thereof, the Issuer will make an offer (an Asset Sale Offer) to all Holders and may make an offer to all holders of other Indebtedness that is secured by a Lien on the Collateral and that is pari passu with the Notes or any Note Guarantees with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets or events of loss to purchase, prepay or redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest and Additional Amounts, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders on the relevant Record Date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuer may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into (or to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, or if the aggregate amount of Notes tendered pursuant to a Notes Offer exceeds the amount of the Net Proceeds so applied, the Trustee will select the Notes and such other pari passu Indebtedness, if applicable, to be purchased on a pro rata basis (or in the manner provided in Section 3.03), based on the amounts tendered or required to be prepaid or redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations (and rules of any exchange on which the Notes are then listed) to the extent those laws, regulations or rules are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer or a Notes Offer. To the extent that the provisions of any securities laws or regulations or exchange rules conflict with the Asset Sale or Notes Offer provisions of this Indenture, the Issuer will comply with the applicable securities laws, regulations and rules and will not be deemed to have breached its obligations under the Asset Sale or Notes Offer provisions of this Indenture by virtue of such compliance.
SECTION 4.10. Transactions with Affiliates.
(a) The Parent Guarantor shall not, and shall not cause or permit any of its Restricted Subsidiaries to, make any payment to or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Parent Guarantor (each, an Affiliate Transaction) involving aggregate payments or consideration in excess of $5.0 million, unless:
(1) the Affiliate Transaction is on terms that are, taken as a whole, no less favorable to the Parent Guarantor or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Parent Guarantor or such Restricted Subsidiary with a Person who is not such an Affiliate; and
(2) the Parent Guarantor delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, a resolution of the Board of Directors of the Parent Guarantor set forth in an Officers Certificate certifying that such Affiliate Transaction complies with this Section 4.10 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Parent Guarantor (or in the event there is only one disinterested director, by such disinterested director, or, in the event there are no disinterested directors, by unanimous approval of the members of the Board of Directors of the Parent Guarantor); and, in addition,
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion of an accounting, appraisal or investment banking firm of international standing, or other recognized independent expert of international standing with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required, stating that the transaction or series of related transactions is (i) fair from a financial point of view taking into account all relevant circumstances or (ii) on terms not less favorable than might have been obtained in a comparable transaction at such time on an arms-length basis from a Person who is not an Affiliate.
(b) Notwithstanding the foregoing, the following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.10(a):
(1) any employment agreement, collective bargaining agreement, consulting agreement or employee benefit arrangements with any employee, consultant, officer or director of the Parent Guarantor or any Restricted Subsidiary, including under any stock option, stock appreciation rights, stock incentive or similar plans, entered into in the ordinary course of business;
(2) transactions between or among the Parent Guarantor and/or its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Parent Guarantor) that is an Affiliate of the Parent Guarantor solely because the Parent Guarantor owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) payment of reasonable and customary fees, salaries, bonuses, compensation, other employee benefits and reimbursements of expenses (pursuant to indemnity arrangements or otherwise) of Officers, directors, employees or consultants of the Parent Guarantor or any of its Restricted Subsidiaries;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Parent Guarantor to Affiliates of the Parent Guarantor or any issuance of Subordinated Shareholder Funding;
(6) Restricted Payments that do not violate Section 4.08;
(7) transactions pursuant to or contemplated by any agreement in effect on the Issue Date and transactions pursuant to any amendment, modification or extension to such agreement, so long as such amendment, modification or extension, taken as a whole, is not materially more disadvantageous to the Holders than the original agreement as in effect on the Issue Date;
(8) Permitted Investments (other than Permitted Investments described in clauses (3), (4), (5), (15) and (16) of the definition thereof);
(9) Management Advances;
(10) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture that are fair to the Parent Guarantor or the Restricted Subsidiaries in the reasonable determination of the members of the Board of Directors of the Parent Guarantor or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated Person;
(11) the granting and performance of any registration rights for the Parent Guarantors Capital
Stock;
(12) any contribution to the capital of the Parent Guarantor;
(13) pledges of Equity Interests of Unrestricted Subsidiaries; and
(14) transactions undertaken in good faith (as certified by a responsible financial or accounting officer of the Parent Guarantor in an Officers Certificate) between the Parent Guarantor and any other Person or a Restricted Subsidiary and any other Person with which the Parent Guarantor or any of its Restricted Subsidiaries files a consolidated tax return or which the Parent Guarantor or any of its Restricted Subsidiaries is part of a group for tax purposes that are effected for the purpose of improving the consolidated tax efficiency of the Parent Guarantor and its Subsidiaries and not for the purpose of circumventing any provision of this Indenture.
SECTION 4.11. Purchase of Notes upon a Change of Control.
(a) If a Change of Control occurs at any time, then the Issuer shall make an offer (a Change of Control Offer) to each Holder to purchase such Holders Notes, at a purchase price (the Change of Control Purchase Price) in cash in an amount equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of purchase (the Change of Control Purchase Date) (subject to the rights of Holders on the relevant Record Dates to receive interest due on the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control, the Issuer shall mail a notice to each Holder of the Notes at such Holders registered address or otherwise deliver a notice in accordance with the procedures set forth in Section 3.04, which notice shall state:
(A) that a Change of Control has occurred, and the date it occurred, and that a Change of Control Offer is being made;
(B) the circumstances and relevant facts regarding such Change of Control (including, but not limited to, applicable information with respect to pro forma historical income, cash flow and capitalization after giving effect to the Change of Control);
(C) the Change of Control Purchase Price and the Change of Control Purchase Date, which shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed or delivered, pursuant to the procedures required by this Indenture and described in such notice;
(D) that any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date unless the Change of Control Purchase Price is not paid;
(E) that any Note (or part thereof) not tendered shall continue to accrue interest; and
(F) any other procedures that a Holder must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) On the Change of Control Purchase Date, the Issuer shall, to the extent lawful:
(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the paying agent an amount equal to the Change of Control Purchase Price in respect of all Notes or portions of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer.
(d) The Paying Agent shall promptly mail (or cause to be delivered) to each Holder which has properly tendered and so accepted the Change of Control Offer for such Notes, and the Trustee (or an authenticating agent appointed by the Issuer) shall promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any. Any Note so accepted for payment will cease to accrue interest on or after the Change of Control Purchase Date. The Issuer shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Purchase Date.
(e) This Section 4.11 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) If the Change of Control Purchase Date is on or after an interest Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders who tender pursuant to the Change of Control Offer.
(g) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer or (2) a notice of redemption has been given pursuant to the provisions of paragraph 6 of the Notes, unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.
(h) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations (and rules of any exchange on which the Notes are then listed) to the extent those laws, regulations or rules are applicable in connection with the repurchase of the Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations or exchange rules conflict with the Change of Control provisions of this Indenture, the Issuer shall comply with the applicable securities laws, regulations and rules and will not be deemed to have breached its obligations under this Indenture by virtue of such compliance.
SECTION 4.12. Additional Amounts.
(a) All payments made by or on behalf of the Issuer or any of the Guarantors under or with respect to the Notes or any Note Guarantee shall be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes unless the withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political sub-
division thereof or therein (each of (1) and (2), a Tax Jurisdiction) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the Additional Amounts) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, or having or having had a permanent establishment in, the relevant Tax Jurisdiction or having any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, this Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuers reasonable written request addressed to the holder at least 30 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Code or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above.
In addition to the foregoing, the Issuer and the Guarantors shall also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Indenture, any Note Guarantee or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, shall deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officers Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officers Certificates must also set forth any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders on the relevant payment date. The Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officers Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, shall make all withholdings and deductions (within the time period) required by law and shall remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer or the relevant Guarantor shall use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor shall furnish to the Trustee (or to a Holder upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuer or a Guarantor, as the case may be, or if, notwithstanding such entitys efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in this Indenture or the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) This Section 4.12 shall survive any termination, defeasance or discharge of this Indenture, any transfer by a holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
SECTION 4.13. Additional Intercreditor Agreements and Amendments to the Intercreditor Agreement.
(a) At the request of the Parent Guarantor, in connection with the incurrence or refinancing by the Parent Guarantor or its Restricted Subsidiaries of any Indebtedness secured or permitted to be secured by the Collateral, the Parent Guarantor, the relevant Restricted Subsidiaries, the Trustee, the Security Agent and the Intercreditor Agent, as applicable, shall enter into an intercreditor or similar agreement or a restatement, amendment or other modification of the existing Intercreditor Agreement (an Additional Intercreditor Agreement) with the holders of such Indebtedness (or their duly authorized representatives) on substantially the same terms as the Intercreditor Agreement (or on terms that in the good faith judgment of the Board of Directors of the Parent Guarantor are not materially less favorable to the Holders), including containing substantially the same terms with respect to the application of the proceeds of the Collateral held thereunder and the means of enforcement, it being understood that an
increase in the amount of Indebtedness being subject to the terms of the Intercreditor Agreement or Additional Inter-creditor Agreement shall not be deemed to be less favorable to the Holders and shall be permitted by this Section 4.13(a) if the incurrence of such Indebtedness and any Lien in its favor is permitted Section 4.06 and Section 4.07; provided that such Additional Intercreditor Agreement shall not impose any personal obligations on the Trustee or the Security Agent or, in the opinion of the Trustee or the Security Agent, adversely affect the rights, duties, liabilities or immunities of the Trustee or the Security Agent under this Indenture or the Intercreditor Agreement. As used herein, the term Intercreditor Agreement shall include references to any Additional Intercreditor Agreement that supplements or replaces the Intercreditor Agreement.
(b) At the written direction of the Parent Guarantor and without the consent of the Holders, the Trustee or the Security Agent or the Intercreditor Agent may from time to time enter into one or more amendments to any Intercreditor Agreement to: (i) cure any ambiguity, omission, defect or inconsistency of any such agreement, (ii) increase the amount or types of Indebtedness covered by any such agreement that may be incurred by the Issuer and the Guarantors that is subject to any such agreement (provided that such Indebtedness is incurred in compliance with this Indenture), (iii) add Restricted Subsidiaries to the Intercreditor Agreement, (iv) further secure the Notes (including additional Notes issued in compliance with this Indenture), (v) make provision for equal and ratable pledges of the Collateral to secure additional Notes issued in compliance with this Indenture or to implement any Permitted Collateral Liens or (vi) make any other change to any such agreement that, in the good faith judgment of the Board of Directors of the Parent Guarantor, does not adversely affect the Holders in any material respect. The Parent Guarantor shall not otherwise direct the Trustee or the Security Agent to enter into any amendment to any Intercreditor Agreement without the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding, except as otherwise permitted under Article Nine or as permitted by the terms of such Intercreditor Agreement, and the Parent Guarantor may only direct the Trustee or the Security Agent to enter into any amendment to the extent such amendment does not impose any personal obligations on the Trustee or the Security Agent or, in the opinion of the Trustee or the Security Agent, adversely affect the rights, duties, liabilities or immunities of the Trustee or the Security Agent under this Indenture or any Intercreditor Agreement.
(c) Each Holder, by accepting such Note, shall be deemed to have:
(1) appointed and authorized the Trustee, the Security Agent and the Intercreditor Agent from time to time to give effect to such provisions;
(2) authorized each of the Trustee, the Security Agent and the Intercreditor Agent from time to time to become a party to any additional intercreditor arrangements described above;
(3) agreed to be bound by such provisions and the provisions of any additional intercreditor arrangements described above; and
(4) irrevocably appointed the Trustee, the Security Agent and the Intercreditor Agent to act on its behalf from time to time to enter into and comply with such provisions and the provisions of any additional intercreditor arrangements described above, in each case, without the need for the consent of any Holder of the Notes.
SECTION 4.14. Note Guarantees and Security Interests.
Subject to the Agreed Security Principles, the Issuer shall, and shall cause each Guarantor to, (i) complete all filings and other similar actions required in connection with the creation and perfection of the security interests in the Collateral owned by it in favor of the Holders, the Trustee (on its own behalf and on behalf of the Holders) and/or the Security Agent (on behalf of itself, the Trustee and the Holders), as applicable, as and to the extent contemplated by the Security Documents set forth on Schedule II attached hereto within the time periods set forth therein and deliver, and cause each Guarantor to deliver, such other agreements, instruments, certificates and opinions of counsel that may be reasonably requested by the Security Agent in connection therewith and (ii) take all actions necessary to maintain such security interests. For the avoidance of doubt, a Paying Agent shall be held harmless by the Company and have no liability with respect to payments or disbursements to be made by such Paying Agent for which payment instructions are not made or that are not otherwise deposited by the respective times set forth in this Indenture.
SECTION 4.15. Limitation on Issuance of Guarantees of Indebtedness.
(a) Subject to the Agreed Security Principles, the Intercreditor Agreement and any Additional Inter-creditor Agreement, the Parent Guarantor will not permit any of its Restricted Subsidiaries (other than Immaterial Subsidiaries) that is not the Issuer or a Guarantor to Guarantee, directly or indirectly, the payment of any obligations of the Issuer or a Guarantor under the Revolving Credit Facility (or other Indebtedness that is incurred under Section 4.06(b)(2)) or any other Indebtedness of the Issuer or a Guarantor unless such Restricted Subsidiary simultaneously executes and delivers a Supplemental Indenture providing for the Note Guarantee of the payment of the Notes by such Restricted Subsidiary which Note Guarantee will be senior to or pari passu with such Restricted Subsidiarys Guarantee of such other Indebtedness and with respect to any Guarantee of Indebtedness that is expressly contractually subordinated in right of payment to the Notes or to any Note Guarantee by such Restricted Subsidiary, any such Guarantee will be subordinated to such Restricted Subsidiarys Note Guarantee at least to the same extent as such subordinated Indebtedness is subordinated to the Notes.
Following the provision of any additional Note Guarantees as described in the immediately preceding paragraph, subject to the Agreed Security Principles, the Intercreditor Agreement and any Additional Intercreditor Agreement (if such security is being granted in respect of the other Indebtedness), any such Guarantor shall accede to the Intercreditor Agreement and provide security over its material assets that are of the same type as any of the Issuers or the Guarantors assets that were a part of the Collateral as of the First Escrow Release Date (including Vessels, but excluding any assets of such Guarantor which are subject to a Permitted Lien at the time of the execution of such Supplemental Indenture (to the extent that such Permitted Lien was not created, incurred or assumed in contemplation thereof) if providing such security interest would not be permitted by the terms of such Permitted Lien or by the terms of any obligations secured by such Permitted Lien) to secure its Note Guarantee on a first-priority basis consistent with the Collateral.
This paragraph (a) will not be applicable to any Guarantees of any Restricted Subsidiary:
(1) existing on the Issue Date;
(2) that existed at the time such Person became a Restricted Subsidiary if the Guarantee was not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary; or
(3) arising solely due to granting of a Permitted Lien that would not otherwise constitute a Guarantee of Indebtedness of the Parent Guarantor or any Guarantor.
(b) Notwithstanding the foregoing, the Parent Guarantor shall not be obligated to cause such Restricted Subsidiary to guarantee the Notes or provide security to the extent that such Note Guarantee or the grant of such security by such Restricted Subsidiary would be inconsistent with the Intercreditor Agreement, any Additional Inter-creditor Agreement or the Agreed Security Principles or would reasonably be expected to give rise to or result in (x) any liability for the officers, directors or shareholders of such Restricted Subsidiary, (y) any violation of applicable law that cannot be prevented or otherwise avoided through measures reasonably available to the Parent Guarantor or the Restricted Subsidiary or (z) any significant cost, expense, liability or obligation (including with respect to any Taxes) other than reasonable out-of-pocket expenses and other than reasonable expenses incurred in connection with any governmental or regulatory filings required as a result of, or any measures pursuant to clause (y) undertaken in connection with, such Note Guarantee which cannot be avoided through measures reasonably available to the Parent Guarantor or the Restricted Subsidiary.
(c) Each additional Note Guarantee will be contractually limited as necessary to recognize certain defenses generally available to guarantors or sureties (including those that relate to fraudulent conveyance or transfer, voidable preference, financial assistance, corporate purpose, capital maintenance or similar laws, regulations or defenses affecting the rights of creditors generally) and other legal restrictions applicable to the Guarantors and their respective shareholders, directors and general partners.
SECTION 4.16. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.
(a) The Parent Guarantor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Parent Guarantor or any Restricted Subsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Parent Guarantor or any Restricted Subsidiary;
(2) make loans or advances to the Parent Guarantor or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its properties or assets to the Parent Guarantor or any Restricted Subsidiary;
provided that (x) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock, (y) the subordination of (including the application of any standstill period to) loans or advances made to the Parent Guarantor or any Restricted Subsidiary to other Indebtedness incurred by the Parent Guarantor or any Restricted Subsidiary and (z) the provisions contained in documentation governing or relating to Indebtedness requiring transactions between or among the Parent Guarantor and any Restricted Subsidiary or between or among any Restricted Subsidiaries to be on fair and reasonable terms or on an arms-length basis, in each case, shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 4.16(a) above shall not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements or instruments governing or relating to Indebtedness as in effect on the Issue Date (including pursuant to the Revolving Credit Facility and the related documentation) and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the amendments, restatements, modifications, renewals, supplements, re-fundings, replacements or refinancings are not materially less favorable, taken as a whole, to the Holder with respect to such dividend and other payment restrictions than those contained in those agreements or instruments on the Issue Date (as determined in good faith by the Parent Guarantor);
(2) this Indenture, the Notes, the Note Guarantees, the Revolving Credit Facility, the Inter-creditor Agreement, any Additional Intercreditor Agreement and the Security Documents;
(3) agreements or instruments governing other Indebtedness permitted to be incurred under Section 4.06 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein are not materially less favorable, taken as a whole, to the Holder than is customary in comparable financings (as determined in good faith by the Parent Guarantor) and the Parent Guarantor determines at the time of the incurrence of such Indebtedness that such encumbrances or restrictions will not adversely effect, in any material respect, the Parent Guarantors ability to make principal or interest payments on the Notes;
(4) applicable law, rule, regulation or order or the terms of any license, authorization, concession or permit;
(5) any agreement or instrument governing or relating to Indebtedness or Capital Stock of a Person acquired by the Parent Guarantor or any of its Restricted Subsidiaries as in effect at the time of such acquisition (other than any agreement or instrument entered into in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) customary non-assignment and similar provisions in contracts, leases and licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature set forth in Section 4.16(a)(3) or any encumbrance or restriction pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of the joint venture;
(8) any agreement for the sale or other disposition of the Capital Stock or all or substantially all of the property and assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements or instruments governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements or instruments governing the Indebtedness being refinanced;
(10) Liens permitted to be incurred under Section 4.07 that limit the right of the debtor to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Parent Guarantors Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;
(12) restrictions on cash or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, in each case, under contracts entered into in the ordinary course of business;
(13) any customary Productive Asset Leases for Vessels and other assets used in the ordinary course of business; provided that such encumbrance or restriction only extends to the Vessel or other asset financed in such Productive Asset Lease;
(14) any encumbrance or restriction existing with respect to any Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary that is designated as a Restricted Subsidiary in accordance with the terms of this Indenture at the time of such designation and not incurred in contemplation of such designation, which encumbrances or restrictions are not applicable to any Person other than such Unrestricted Subsidiary or the property or assets of such Unrestricted Subsidiary; provided that the encumbrances or restrictions are customary for the business of such Unrestricted Subsidiary and would not, at the time agreed to, be expected to affect the ability of the Issuer and the Guarantors to make payments under the Notes and this Indenture;
(15) customary encumbrances or restrictions contained in agreements in connection with Hedging Obligations permitted under this Indenture; and
(16) any encumbrance or restriction existing under any agreement that extends, renews, refinances, replaces, amends, modifies, restates or supplements the agreements containing the encumbrances or restrictions in the foregoing clauses (1) through (15), or in this clause (16); provided that the terms and conditions of any such encumbrances or restrictions are no more restrictive in any material respect than those under or pursuant to the agreement so extended, renewed, refinanced, replaced, amended, modified, restated or supplemented.
SECTION 4.17. Designation of Restricted and Unrestricted Subsidiaries.
(a) The Board of Directors of the Parent Guarantor may designate any Restricted Subsidiary (other than the Issuer) to be an Unrestricted Subsidiary if that designation would not cause a Default.
(b) If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Parent Guarantor and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.08 or under one or more clauses of the definition of Permitted Investments, as determined by the Parent Guarantor. The designation of a Restricted Subsidiary as an Unrestricted Subsidiary will only be permitted if the deemed Investment resulting from such designation would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(c) The Parent Guarantor may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default.
(d) Any designation of a Subsidiary of the Parent Guarantor as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a copy of a resolution of the Board of Directors giving effect to such designation and an Officers Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.08. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.06, the Parent Guarantor will be in default of such Section 4.06. The Board of Directors of the Parent Guarantor may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (i) such Indebtedness is permitted under Section 4.06, calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable reference period; and (ii) no Default or Event of Default would be in existence following such designation.
SECTION 4.18. Payment of Taxes and Other Claims. The Parent Guarantor shall pay or discharge and shall cause each of its Subsidiaries to pay or discharge, or cause to be paid or discharged, before the same shall become delinquent (a) all material taxes, assessments and governmental charges levied or imposed upon (i) the Parent Guarantor or any such Subsidiary, (ii) the income or profits of any such Subsidiary which is a corporation or (iii) the property of the Parent Guarantor or any such Subsidiary and (b) all material lawful claims for labor, materials and supplies that, if unpaid, might by law become a lien upon the property of the Parent Guarantor or any such Subsidiary; provided that the Parent Guarantor shall not be required to pay or discharge, or cause to be paid or discharged, any such tax, assessment, charge or claim, the amount, applicability or validity of which is being contested in good faith by appropriate proceedings or for which adequate reserves have been established.
SECTION 4.19. Reports to Holders. So long as any Notes are outstanding, the Parent Guarantor shall furnish to the Trustee:
(a) within 90 days (or, in the case of the fiscal year ending December 31, 2016, 120 days) after the end of the Parent Guarantors fiscal year beginning with the fiscal year ending December 31, 2016, annual reports containing the following information: (a) audited consolidated balance sheet of the Parent Guarantor as of the end of the two most recent fiscal years and audited consolidated income statements and statements of cash flow of the Parent Guarantor for the three most recent fiscal years, including complete footnotes to such financial statements and the report of the independent auditors on the financial statements; (b) pro forma income statement and balance sheet information of the Parent Guarantor, together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations that have occurred since the beginning of the most recently completed fiscal year as to which such annual report relates (unless such pro forma information has been provided in a previous report pursuant to clause (2) or (3) below) (provided that such pro forma financial information shall be provided only to the extent available without unreasonable expense); (c) a managements discussion and analysis of the audited financial statements,
including a discussion of the results of operations (including a discussion by business segment), financial condition and liquidity and capital resources, and a discussion of material commitments and contingencies and critical accounting policies with a level of detail that is substantially consistent and similar in scope to the Offering Memorandum with such changes as are necessary or appropriate to reflect such changes to the business and operations of the Parent Guarantor since the date of the Offering Memorandum; (d) a description of the business, management and shareholders of the Parent Guarantor, material affiliate transactions and material debt instruments; and (e) material risk factors and material recent developments; provided that any item of disclosure that complies in all material respects with the requirements applicable under Form 20-F under the Exchange Act for annual reports with respect to such item will be deemed to satisfy the Parent Guarantors obligations under this clause (1) with respect to such item;
(b) within (i) 60 days following the end of each of the first and third fiscal quarters in each fiscal year of the Parent Guarantor and (ii) 75 days following the end of each second fiscal quarter in each fiscal year of the Parent Guarantor, beginning with the fiscal quarter ending September 30, 2015, quarterly reports containing the following information: (a) an unaudited condensed consolidated balance sheet as of the end of such quarter and unaudited condensed statements of income and cash flow for the quarterly and year to date periods ending on the unaudited condensed balance sheet date, and the comparable prior year periods (which may be presented on a pro forma basis) for the Parent Guarantor, together with condensed footnote disclosure; (b) pro forma income statement and balance sheet information of the Parent Guarantor, together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations that have occurred since the beginning of the most recently completed fiscal quarter as to which such quarterly report relates (unless such pro forma information has been provided in a previous report pursuant to sub-clause (a) or (c) of this clause (2); provided that such pro forma financial information shall be provided only to the extent available without unreasonable expense); (c) a managements discussion and analysis of the unaudited financial statements, including a discussion of the consolidated financial condition and results of operations of the Parent Guarantor and any material change between the current quarterly period and the corresponding period of the prior year; and (d) material recent developments; and
(c) promptly after the occurrence of any material acquisition, disposition or restructuring of the Parent Guarantor and the Restricted Subsidiaries, taken as a whole, or any senior executive officer changes at the Parent Guarantor or change in auditors of the Parent Guarantor or any other material event that the Parent Guarantor announces publicly, a report containing a description of such event.
Contemporaneously with the furnishing of each such report discussed above, the Parent Guarantor will post such report to its website or on IntraLinks or any comparable password-protected online data system, which will require a confidentiality acknowledgement (but not restrict the recipients of such information in trading of securities of the Parent Guarantor or its Affiliates).
Within ten Business Days of the furnishing of each such report discussed above, the Parent Guarantor will hold a conference call related to the report. Details regarding access to such conference call will be posted at least 24 hours prior to the commencement of such call on the website, IntraLinks or other online data system on which the report is posted.
The annual report required by the preceding paragraph will include a presentation either on the face of the financial statements or in footnotes thereto of the assets and liabilities and operating results of the Guarantors separate from the assets and liabilities and operating results of the non-Guarantor Subsidiaries. In addition, if the Parent Guarantor has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Subsidiaries are Significant Subsidiaries, then the quarterly and annual financial information required by the preceding paragraph will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Parent Guarantor and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Parent Guarantor.
All financial statements shall be prepared in accordance with IFRS, except for any departures from IFRS requirements consistent with industry practice, as determined in good faith by the Board of Directors of the Parent Guarantor. Except as provided in the preceding sentence, all financial statements shall be prepared in accordance with IFRS on a consistent basis for the periods presented; provided, however, that the reports set forth in clauses (1),
(2) and (3) above may, in the event of a change in applicable IFRS, present earlier periods on a basis that applied to such periods, subject to the provisions of this Indenture. Except as provided for above, no report need include separate financial statements for the Parent Guarantor or Subsidiaries of the Parent Guarantor or any disclosure with respect to the results of operations or any other financial or statistical disclosure not of a type included in the Offering Memorandum.
In addition, for so long as any Notes remain outstanding, the Parent Guarantor has agreed that it will furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
The Trustee shall have no duty to examine any of such reports, information or documents to ascertain whether they contain the information and otherwise comply with the foregoing; the sole duty of the Trustee in respect of same being to file the same and make them available to Holders during normal business hours upon reasonable prior written request. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Parent Guarantors compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
SECTION 4.20. Further Assurances. Subject to the Agreed Security Principles, the Parent Guarantor and its Restricted Subsidiaries will, at their own expense, execute and do all such acts and things and provide such assurances as the Security Agent may reasonably require (i) for registering any of the Security Documents in any required register and for granting, perfecting, preserving or protecting the security intended to be afforded by such Security Documents and (ii) if such Security Documents have become enforceable, for facilitating the realization of all or any part of the assets which are subject to such Security Documents and for facilitating the exercise of all powers, authorities and discretions vested in the Security Agent or in any receiver of all or any part of those assets. Subject to the Agreed Security Principles, the Parent Guarantor and its Restricted Subsidiaries will execute all transfers, conveyances, assignments and releases of that property whether to the Security Agent or to its nominees and give all notices, orders and directions which the Security Agent may reasonably request.
SECTION 4.21. [Reserved].
SECTION 4.22. Impairment of Security Interest. The Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, take or omit to take any action, which action or omission would have the result of materially impairing the security interest with respect to the Collateral (it being understood that the incurrence of Permitted Collateral Liens shall under no circumstances be deemed to materially impair the security interest with respect to the Collateral) for the benefit of the Security Agent, the Trustee and the holders of the Notes, and the Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, grant to any Person other than the Security Agent, for the benefit of itself, the Trustee and the holders of the Notes and the other beneficiaries described in the Security Documents, the Intercreditor Agreement and any Additional Intercreditor Agreement, any Lien over any of the Collateral that is prohibited by Section 4.07; provided that the Parent Guarantor and its Restricted Subsidiaries may incur any Lien over any of the Collateral that is not prohibited by Section 4.07, including Permitted Collateral Liens, and the Collateral may be discharged or released in accordance with this Indenture, the applicable Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement.
Subject to the foregoing, the Security Documents may be amended, extended, renewed, restated or otherwise modified or released to (i) cure any ambiguity, omission, defect or inconsistency therein; (ii) provide for Permitted Collateral Liens; (iii) add to the Collateral; or (iv) make any other change thereto that does not adversely affect the holders of the Notes in any material respect; provided, however, that (except where permitted by this Indenture, the Intercreditor Agreement or any Additional Intercreditor Agreement or to effect or facilitate the creation of Permitted Collateral Liens for the benefit of the Security Agent and holders of other Indebtedness incurred in accordance with this Indenture) no Security Document may be amended, extended, renewed, restated or otherwise modified or released, unless contemporaneously with such amendment, extension, renewal, restatement or modification or release (followed by an immediate retaking of a Lien of at least equivalent ranking over the same assets), the Parent Guarantor delivers to the Security Agent and the Trustee, either (1) a solvency opinion, in form and substance reasonably satisfactory to the Security Agent and the Trustee, from an accounting, appraisal or investment banking firm of international standing which confirms the solvency of the Parent Guarantor and its Subsidiaries, taken as a
whole, after giving effect to any transactions related to such amendment, extension, renewal, restatement, modification or release, (2) a certificate from an Officer of the relevant Person which confirms the solvency of the Person granting such Lien after giving effect to any transactions related to such amendment, extension, renewal, restatement, modification or release (followed by an immediate retaking of a Lien of at least equivalent ranking over the same assets) or (3) an Opinion of Counsel (subject to any qualifications customary for this type of opinion of counsel), in form and substance reasonably satisfactory to the Trustee, confirming that, after giving effect to any transactions related to such amendment, extension, renewal, restatement, modification or release (followed by an immediate retaking of a Lien of at least equivalent ranking over the same assets), the Lien or Liens created under the Security Document, so amended, extended, renewed, restated, modified or released and retaken, are valid and perfected Liens not otherwise subject to any limitation, imperfection or new hardening period, in equity or at law, that such Lien or Liens were not otherwise subject to immediately prior to such amendment, extension, renewal, restatement, modification or release and retake and to which the new Indebtedness secured by the Permitted Collateral Lien is not subject. In the event that the Parent Guarantor and its Restricted Subsidiaries comply with the requirements of this Section 4.22, the Trustee and the Security Agent shall (subject to customary protections and indemnifications) consent to such amendments without the need for instructions from the Holders of the Notes.
SECTION 4.23. After-Acquired Property. Promptly following the acquisition by the Issuer or any Guarantor of any After-Acquired Property (but subject to the Agreed Security Principles, the Intercreditor Agreement and any Additional Intercreditor Agreement), the Issuer or such Guarantor shall execute and deliver such mortgages, deeds of trust, security instruments, financing statements and certificates and opinions of counsel as shall be reasonably necessary to vest in the Security Agent a perfected security interest in such After-Acquired Property and to have such After-Acquired Property added to the Collateral and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such After-Acquired Property to the same extent and with the same force and effect.
SECTION 4.24. Limitation on Sale and Leaseback Transactions. The Parent Guarantor shall not, and shall not permit any of its Restricted Subsidiaries to, enter into any sale and leaseback transaction (including any French Tax Lease); provided that the Parent Guarantor or any Restricted Subsidiary may enter into a sale and leaseback transaction (including any French Tax Lease) if:
(1) (a) the Parent Guarantor or such Restricted Subsidiary, as applicable, could have incurred Indebtedness in an amount equal to the Attributable Debt or Capital Lease Obligation relating to such sale and leaseback transaction under Section 4.06; and (b) the Parent Guarantor or such Restricted Subsidiary, as applicable, could have incurred a Lien to secure such Indebtedness pursuant to Section 4.07;
(2) other than with respect to any French Tax Lease, the gross cash proceeds of that sale and leaseback transaction are at least equal to the Fair Market Value of the property that is the subject of that sale and leaseback transaction; and
(3) the transfer of assets in that sale and leaseback transaction is permitted by, and the Parent Guarantor applies the proceeds of such transaction in compliance with, Section 4.09.
SECTION 4.25. Payments for Consent. The Parent Guarantor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder for or as an inducement to any consent, waiver or amendment of any of the terms of the provisions of this Indenture, the Notes, the Intercreditor Agreement or any Additional Intercreditor Agreement unless such consideration is offered to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement. Notwithstanding the foregoing, the Parent Guarantor and its Restricted Subsidiaries shall be permitted, in any offer or payment of consideration for, or as an inducement to, any consent, waiver or amendment of any of the terms or provisions of this Indenture, the Notes, the Intercreditor Agreement or any Additional Intercreditor Agreement, to exclude Holders in any jurisdiction where (A)(i) the solicitation of such consent, waiver or amendment, including in connection with an offer to purchase for cash, or (ii) the payment of the consideration therefor would require the Parent Guarantor or any of its Restricted Subsidiaries to file a registration statement, prospectus or similar document under any applicable securities laws (including, but not limited to, the United States federal securities laws, the laws of the Commonwealth of The Bahamas and the laws of the European Union or its member states), which the Parent Guarantor in its
sole discretion determines (acting in good faith) would be materially burdensome (it being understood that it would not be materially burdensome to file the consent document(s) used in other jurisdictions, any substantially similar documents or any summary thereof with the securities or financial services authorities in such jurisdiction); or (B) such solicitation would otherwise not be permitted under applicable law in such jurisdiction.
SECTION 4.26. Maintenance of Listing. The Parent Guarantor shall use its commercially reasonable efforts to (i) obtain the listing of the Notes on the Official List of the Channel Islands Securities Exchange Authority Limited as promptly as possible after the Issue Date and (ii) maintain such listing for so long as such Notes are outstanding; provided that if the Parent Guarantor is unable to obtain or if at any time the Parent Guarantor determines that it will not maintain such listing, the Parent Guarantor shall promptly obtain a listing of the Notes on another recognized stock exchange and thereafter the Parent Guarantor shall maintain such listing.
SECTION 4.27. Business Activities. The Parent Guarantor shall not, and shall not permit any of its Restricted Subsidiaries to, engage in any business other than a Permitted Business, except to such extent as would not be material to the Parent Guarantor and its Subsidiaries taken as a whole.
SECTION 4.28. Re-flagging of Vessels. Notwithstanding anything to the contrary herein, a Restricted Subsidiary may reconstitute itself in another jurisdiction, or merge with or into another Restricted Subsidiary, for the purpose of re-flagging a vessel that it owns or bareboat charters so long as at all times each Restricted Subsidiary remains organized under the laws of any country recognized by the United States of America with an investment grade credit rating from either S&P or Moodys or any Permitted Jurisdiction; provided that contemporaneously with the transactions required to complete the re-flagging of such vessel, to the extent that any Liens on the Collateral securing the Notes were released as provided for under Section 11.04, (x) the Issuer, the Parent Guarantor or the relevant Restricted Subsidiary grants a Lien of at least equivalent ranking over the same assets and (y) the Parent Guarantor delivers to the Security Agent and the Trustee, either (1) a solvency opinion, in form and substance reasonably satisfactory to the Security Agent and the Trustee, from an independent financial advisor or appraiser or investment bank which confirms the solvency of the Parent Guarantor and its Subsidiaries, taken as a whole, after giving effect to any transactions related to such re-flagging, (2) a certificate from an Officer of the relevant Person which confirms the solvency of the Person granting such Lien after giving effect to any transactions related to such re-flagging, or (3) an Opinion of Counsel (subject to any qualifications customary for this type of opinion of counsel), in form and substance reasonably satisfactory to the Trustee, confirming that, after giving effect to any transactions related to such re-flagging, the Lien or Liens created under the Security Document, so released and retaken are valid and perfected Liens not otherwise subject to any limitation, imperfection or new hardening period, in equity or at law, that such Lien or Liens were not otherwise subject to immediately prior to such release and retake. For the avoidance of doubt, the provisions of Article Five will not apply to a reconstitution or merger permitted under this Section 4.28.
ARTICLE FIVE
MERGER, CONSOLIDATION OR SALE OF ASSETS
SECTION 5.01. Merger, Consolidation or Sale of Assets.
(a) Neither the Parent Guarantor nor the Issuer will, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Parent Guarantor or the Issuer (as applicable) is the surviving corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Parent Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(1) either: (a) the Parent Guarantor or the Issuer (as applicable) is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Parent Guarantor or the Issuer (as applicable)) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made is an entity organized or existing under the laws of any member state of the European Union as in effect on December 31, 2003, Bermuda, the Commonwealth of The Bahamas, Switzerland, Canada, any state of the United States or the District of Columbia (the Surviving Entity);
(2) the Person formed by or surviving any such consolidation or merger (if other than the Parent Guarantor or the Issuer (as applicable)) or the Person to which such sale, assignment, transfer, lease, conveyance or other disposition has been made assumes (a) by a Supplemental Indenture entered into with the Trustee, all the obligations of the Parent Guarantor or the Issuer (as applicable) under the Notes and this Indenture (including the Parent Guarantors Note Guarantee, if applicable) and (b) all obligations of the Parent Guarantor or the Issuer (as applicable) under the Intercreditor Agreement, any Additional Intercredi-tor Agreement and the Security Documents, subject to the Agreed Security Principles;
(3) immediately after such transaction, no Default or Event of Default is continuing;
(4) the Parent Guarantor or the Issuer (as applicable) or the Person formed by or surviving any such consolidation or merger (if other than the Parent Guarantor or the Issuer (as applicable)), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a); and
(5) the Parent Guarantor delivers to the Trustee an Officers Certificate and Opinion of Counsel, in each case, stating that such consolidation, merger or transfer and, in the case in which a Supplemental Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
Clauses (3) and (4) of this Section 5.01(a) shall not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger or consolidation of the Parent Guarantor or the Issuer (as applicable) with or into a Guarantor and clause (4) of this Section 5.01(a) will not apply to any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets to or merger or consolidation of the Parent Guarantor or the Issuer (as applicable) with or into an Affiliate solely for the purpose of reincorporating the Parent Guarantor or the Issuer (as applicable) in another jurisdiction for tax reasons.
(b) A Subsidiary Guarantor (other than a Subsidiary Guarantor whose Note Guarantee is to be released in accordance with the terms of the Note Guarantee, this Indenture, the Intercreditor Agreement and any Additional Intercreditor Agreement as provided in Section 10.03) will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not such Subsidiary Guarantor is the surviving corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of such Subsidiary Guarantor and its Subsidiaries which are Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(1) immediately after giving effect to that transaction, no Default or Event of Default is con-tinuing;
(2) either:
(a) the person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger assumes all the obligations of that Subsidiary Guarantor under its Note Guarantee and this Indenture, the Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents to which such Subsidiary Guarantor is a party, pursuant to a Supplemental Indenture; or
(b) the Net Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of this Indenture; and
(3) the Parent Guarantor delivers to the Trustee an Officers Certificate and Opinion of Counsel, in each case, stating that such consolidation, merger or transfer and, in the case in which a Supplemental
Indenture is entered into, such Supplemental Indenture, comply with this Section 5.01 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(c) Notwithstanding the provisions of paragraph (b) above, (x)(a) any Restricted Subsidiary may consolidate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to any Guarantor and (b) any Guarantor may consolidate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties and assets of such Guarantor and its Subsidiaries which are Restricted Subsidiaries to another Guarantor and (y) any Guarantor may consolidate or merge with or into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Guarantor, reincorporating such Guarantor in another jurisdiction or changing the legal form of such Guarantor.
SECTION 5.02. Successor Substituted. Upon any consolidation or merger, or any sale, conveyance, transfer, lease or other disposition of all or substantially all of the property and assets of the Parent Guarantor in accordance with Section 5.01 of this Indenture, any Surviving Entity formed by such consolidation or into which the Parent Guarantor is merged or to which such sale, conveyance, transfer, lease or other disposition is made, shall succeed to, and be substituted for, and may exercise every right and power of, the Parent Guarantor under this Indenture with the same effect as if such Surviving Entity had been named as the Parent Guarantor herein; provided that the Parent Guarantor shall not be released from its obligation to pay the principal of, premium, if any, or interest and Additional Amounts, if any, on the Notes in the case of a lease of all or substantially all of its property and assets.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
(a) Each of the following shall be an Event of Default:
(1) default for 30 days in the payment when due of interest or Additional Amounts, if any, with respect to the Notes;
(2) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes;
(3) failure by the Issuer or relevant Guarantor to comply with Section 4.11 or Section 5.01;
(4) failure by the Issuer or relevant Guarantor for 60 days after written notice to the Parent Guarantor by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding voting as a single class to comply with any of the agreements in this Indenture (other than a default in performance, or breach, or a covenant or agreement which is specifically dealt with in clause (1), (2) or (3) above);
(5) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Parent Guarantor or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Parent Guarantor or any of its Restricted Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created after the Issue Date, if that default:
(a) is caused by a failure to pay principal of such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default; or
(b) results in the acceleration of such Indebtedness prior to its express maturity,
and, in each case, the principal amount of any such Indebtedness that is due and has not been paid, together with the principal amount of any other such Indebtedness that is due and has not been paid or the maturity of which has been so accelerated, aggregates $25.0 million or more;
(6) failure by the Issuer, the Parent Guarantor or any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $25.0 million (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effect;
(7) any security interest under the Security Documents on any Collateral having a Fair Market Value in excess of $5.0 million shall, at any time, cease to be in full force and effect (other than in accordance with the terms of the relevant Security Document, the Intercreditor Agreement, any Additional In-tercreditor Agreement and this Indenture) for any reason other than the satisfaction in full of all obligations under this Indenture or the release or amendment of any such security interest in accordance with the terms of this Indenture, the Intercreditor Agreement, any Additional Intercreditor Agreement, or such Security Document or any such security interest created thereunder shall be declared invalid or unenforceable in a final non-appealable decision of a court of competent jurisdiction or the Parent Guarantor shall assert in writing that any such security interest is invalid or unenforceable and any such Default continues for ten
(10) days;
(8) except as permitted by this Indenture (including with respect to any limitations), any Note Guarantee of a Significant Subsidiary or any group of the Parent Guarantors Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor which is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations under its Note Guarantee and such Default continues for 30 days; or
(9) (A) a court having jurisdiction over the Parent Guarantor or a Significant Subsidiary enters (x) a decree or order for relief in respect of the Parent Guarantor or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or (y) a decree or order adjudging the Parent Guarantor or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Parent Guarantor or any such Subsidiary or group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Parent Guarantor or any such Subsidiary or group of Restricted Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days or (B) the Parent Guarantor or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (i) commences a voluntary case under any Bankruptcy Law or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Parent Guarantor or any such Subsidiary or group of Restricted Subsidiaries or for all or substantially all the property and assets of the Parent Guarantor or any such Subsidiary or group of Restricted Subsidiaries, (iii) effects any general assignment for the benefit of creditors or (iv) generally is not paying its debts as they become due.
(b) If a Default or an Event of Default occurs and is continuing and is known to a responsible officer of the Trustee, the Trustee shall mail to each Holder notice of the Default or Event of Default within 15 Business Days after its occurrence by registered or certified mail or facsimile transmission of an Officers Certificate specifying
such event, notice or other action, its status and what action the Issuer is taking or proposes to take with respect thereto. Except in the case of a Default or an Event of Default in payment of principal of, premium, if any, and Additional Amounts or interest on any Notes, the Trustee may withhold the notice to the Holders of such Notes if a committee of its Trust Officers in good faith determines that withholding the notice is in the interests of the Holders. The Trustee shall not be deemed to have knowledge of a Default unless a Trust Officer has actual knowledge of such Default. The Issuer and the Parent Guarantor shall also notify the Trustee within 15 Business Days of the occurrence of any Default stating what action, if any, they are taking with respect to that Default.
SECTION 6.02. Acceleration.
(a) If an Event of Default (other than an Event of Default specified in Section 6.01(a)(9)) occurs and is continuing, the Trustee may, or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes by written notice to the Issuer and the Parent Guarantor (and to the Trustee if such notice is given by the Holders) may and the Trustee shall, if so directed by the Holders of at least 25% in aggregate principal amount of the then outstanding Notes, declare all the Notes to be due and payable immediately. In the event a declaration of acceleration of the Notes pursuant to Section 6.01(a)(5) has occurred and is continuing, the declaration of acceleration of the Notes shall be automatically annulled if the event of default or payment default triggering such Event of Default pursuant to Section 6.01(a)(5) shall be remedied or cured, or waived by the Holders of the relevant Indebtedness, or the Indebtedness that gave rise to such Event of Default shall have been discharged in full, within 30 days after the declaration of acceleration with respect thereto and if the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction.
(b) In the case of an Event of Default arising under Section 6.01(a)(9), with respect to the Parent Guarantor, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, all outstanding Notes will become due and payable immediately without further action or notice.
(c) The holders of not less than a majority in aggregate principal amount of the Notes outstanding by notice to the Trustee may, on behalf of the holders of all outstanding Notes, rescind acceleration or waive any existing Default or Event of Default and its consequences under this Indenture, except a continuing Default or Event of Default
(1) in the payment of the principal of, premium, if any, any Additional Amounts or interest on any Note held by a non-consenting holder (which may only be waived with the consent of each holder of Notes affected), or
(2) for any Note held by a non-consenting holder, in respect of a covenant or provision which under this Indenture cannot be modified or amended without the consent of the Holder of each Note affected by such modification or amendment.
Upon any such rescission or waiver, such Default shall cease to exist and any Event of Default arising therefrom shall be deemed to have been cured for every purpose under this Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
(d) Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or in its exercise of any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with applicable law or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of other holders of the Notes (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such directions are unduly prejudicial to such Holders) or that may involve the Trustee in personal liability. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default if it determines that withholding notice is in their interest, except a Default or Event of Default relating to the payment of principal, interest or Additional Amounts or premium, if any.
(e) Subject to the provisions of Article Seven, in case an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any Holders unless such Holders have offered to the Trustee indemnity or security satisfactory to the Trustee against any loss, liability or expense. Except (subject to the provisions of Article Nine) to enforce the right to receive payment of principal, premium, if any, or interest or Additional Amounts when due, no Holder of a Note may pursue any remedy with respect to this Indenture or the Notes unless:
(1) such Holder has previously given the Trustee written notice that an Event of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of the then outstanding Notes make a written request to the Trustee to pursue the remedy;
(3) such Holders have offered, and if requested, provide to the Trustee reasonable security or indemnity against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and
(5) Holders of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period.
(f) The Parent Guarantor shall deliver to the Trustee annually a statement regarding compliance with this Indenture. Within 30 days of the occurrence of any Default or Event of Default, the Parent Guarantor is required to deliver to the Trustee a statement specifying such Default or Event of Default.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. Subject to the Intercreditor Agreement or any Additional Intercreditor Agreement, the Trustee may direct the Security Agent to take enforcement action with respect to the Collateral if any amount is declared or becomes due and payable pursuant to Section 6.02 (but not otherwise).
All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee, and all rights of action and claims under the Security Documents may be prosecuted or enforced under the Security Documents by the Security Agent (in consultation with the Trustee, where appropriate), without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee or the Security Agent shall be brought in its own name and as trustee of an express trust, and any recovery ofjudgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee or the Security Agent, their agents and counsel, be for the ratable benefit of the Holders in respect of which such judgment has been recovered.
SECTION 6.04. Waiver of Past Defaults. The Holders of not less than a majority in aggregate principal amount of the outstanding Notes may, by written notice to the Trustee, on behalf of the Holders of all the Notes, waive any past Default hereunder and its consequences, except a Default:
(a) in the payment of the principal of, premium, if any, Additional Amounts, if any, or interest on any Note; or
(b) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the holders of each Note affected by such modification or amendment.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
SECTION 6.05. Control by Majority. The Holders of a majority in aggregate principal amount of the Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee under this Indenture; provided that:
(a) the Trustee may refuse to follow any direction that conflicts with law, this Indenture or that the Trustee determines, without obligation, in good faith may be unduly prejudicial to the rights of Holders not joining in the giving of such direction;
(b) the Trustee may refuse to follow any direction that the Trustee determines is unduly prejudicial to the rights of other Holders or would involve the Trustee in personal liability; and
(c) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.
SECTION 6.06. Limitation on Suits. A Holder may not institute any proceedings or pursue any remedy with respect to this Indenture or the Notes unless:
(a) the Holders of at least 25% in aggregate principal amount of outstanding Notes shall have made a written request to the Trustee to pursue such remedy;
(b) such Holder or Holders offer the Trustee indemnity and/or security (including by way of pre-funding) reasonably satisfactory to the Trustee against any costs, liability or expense;
(c) the Trustee does not comply with the request within 30 days after receipt of the request and the offer of indemnity and/or security (including by way of pre-funding); and
(d) during such 30-day period, the Holders of a majority in aggregate principal amount of the outstanding Notes do not give the Trustee a direction that is inconsistent with the request.
The limitations in the foregoing provisions of this Section 6.06, however, do not apply to a suit instituted by a Holder for the enforcement of the payment of the principal of, premium, if any, Additional Amounts, if any, or interest, if any, on such Note on or after the respective due dates expressed in such Note.
A Holder may not use this Indenture to prejudice the rights of any other Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. Unconditional Right of Holders to Bring Suit for Payment. Notwithstanding any other provision of this Indenture, the right of any Holder to bring suit for the enforcement of payment of principal, premium, if any, Additional Amounts, if any, and interest, if any, on the Notes held by such Holder, on or after the respective due dates expressed in the Notes shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. The Issuer covenants that if default is made in the payment
of:
(a) any installment of interest on any Note when such interest becomes due and payable and such default continues for a period of 30 days, or
(b) the principal of (or premium, if any, on) any Note at the Stated Maturity thereof,
the Issuer shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Notes, the whole amount then due and payable on such Notes for principal (and premium, if any), Additional Amounts, if any
and interest, and interest on any overdue principal (and premium, if any) and Additional Amounts, if any and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installment of interest, at the rate borne by the Notes, and, in addition thereto, such further amount as shall be sufficient to cover the amounts provided for in Section 7.05 and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in its own name as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Issuer or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Issuer or any other obligor upon the Notes, wherever situated.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the properly incurred compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.05) and the Holders allowed in any judicial proceedings relative to any of the Issuer or Guarantors, their creditors or their property and, unless prohibited by law or applicable regulations, may vote on behalf of the Holders at their direction in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the properly incurred compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 7.05. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 7.05 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money securities and other properties which the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to empower the Trustee to authorize or consent to, or accept or adopt on behalf of any Holder, any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Application of Money Collected. If the Trustee collects any money or property pursuant to this Article Six, it shall pay out the money or property in the following order:
FIRST: to the Trustee, any Agent, and the Security Agent for amounts due under Section 7.05;
SECOND: to Holders for amounts due and unpaid on the Notes for principal of, premium, if any, interest, if any, and Additional Amounts, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, interest, if any, and Additional Amounts, if any, respectively; and
THIRD: to the Issuer, any Guarantor or any other obligors of the Notes, as their interests may appear, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10. At least 30 days before such record date, the Issuer shall mail to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid. This Section 6.10 is subject at all times to the provisions set forth in Section 11.02.
Notwithstanding the foregoing, the Security Agent shall apply the proceeds of the Collateral as directed by the Intercreditor Agreement or any Additional Intercreditor Agreement.
SECTION 6.11. Undertaking for Costs. A court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee or the Security Agent for any action taken or omitted by it as Trustee or as the Security Agent, the filing by any party litigant in the suit of an undertaking to pay the costs of such suit, and such court may in its discretion assess reasonable costs, including reasonable attorneys fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee or the Security Agent, a suit by Holders of more than 10% in aggregate principal amount of the outstanding Notes or to any suit by any Holder pursuant to Section 6.07.
SECTION 6.12. Restoration of Rights and Remedies. If the Trustee or the Security Agent or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or the Security Agent or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, any Guarantor, the Trustee, the Security Agent and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee, the Security Agent and the Holders shall continue as though no such proceeding had been instituted.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein conferred upon or reserved to the Trustee, or the Security Agent or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.14. Delay or Omission Not Waiver. No delay or omission of the Trustee, or the Security Agent or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Six or by law to the Trustee, or the Security Agent or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.15. Record Date. The Issuer may set a record date for purposes of determining the identity of Holders entitled to vote or to consent to any action by vote or consent authorized or permitted by Sections 6.04 and 6.05. Unless this Indenture provides otherwise, such record date shall be the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee pursuant to Section 2.05 prior to such solicitation.
SECTION 6.16. Waiver of Stay or Extension Laws. Each Issuer covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it shall not hinder, delay or impede the execution of any power herein granted to the Trustee or to the Security Agent, but shall suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE SEVEN
TRUSTEE AND SECURITY AGENT
SECTION 7.01. Duties of Trustee and the Security Agent.
(a) If an Event of Default has occurred and is continuing of which a Trust Officer of the Trustee or the Security Agent has actual knowledge, the Trustee or the Security Agent shall exercise such of the rights and powers vested in it by this Indenture, the Intercreditor Agreement, and any Additional Intercreditor Agreement and the Security Documents and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such persons own affairs.
(b) Subject to the provisions of Section 7.01(a), (i) the Trustee and the Security Agent undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, the Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents and no others and no implied covenants or obligations shall be read into this Indenture against the Trustee and the Security Agent; and (ii) in the absence of bad faith on its part, the Trustee and the Security Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and the Security Agent and conforming to the requirements of this Indenture, the Intercreditor Agreement, any Additional Intercredi-tor Agreement and the Security Documents. In the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee or the Security Agent, the Trustee and the Security Agent, as applicable, shall examine same to determine whether they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Security Agent shall execute and deliver, if necessary, and act as beneficiary under, the Security Documents on behalf of the Holders under this Indenture and shall take such other actions as may be necessary or advisable in accordance with the Security Documents. The Security Agent shall remit any proceeds recovered from enforcement of the Security Documents; provided that all necessary approvals are obtained from each relevant jurisdiction in which the Collateral is located.
(d) Neither the Trustee nor the Security Agent shall be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;
(ii) the Trustee and the Security Agent shall not be liable for any error ofjudgment made in good faith by a Trust Officer of the Trustee or the Security Agent unless it is proved that the Trustee or the Security Agent was grossly negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.02 or 6.05;
(e) The Trustee, any Paying Agent and the Security Agent shall not be liable for interest on any money received by it except as the Trustee, any Paying Agent and the Security Agent may agree in writing with the Issuer or the Subsidiary Guarantors. Money held by the Trustee, the Principal Paying Agent or the Security Agent need not be segregated from other funds except to the extent required by law and, for the avoidance of doubt, shall not be held in accordance with the UK Client Money Rules;
(f) No provision of this Indenture, the Intercreditor Agreement, any Additional Intercreditor Agreement or the Security Documents shall require the Trustee, each Agent, the Principal Paying Agent or the Security Agent to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not assured to it; and
(g) Any provisions hereof or of the Intercreditor Agreement, any Additional Intercreditor Agreement or of the Security Documents relating to the conduct or affecting the liability of or affording protection to the Trustee, each Agent, or the Security Agent, as the case may be, shall be subject to the provisions of this Section 7.01.
SECTION 7.02. Certain Rights of Trustee and the Security Agent.
(a) Subject to Section 7.01:
(i) following the occurrence of a Default or an Event of Default, the Trustee is entitled to require all Agents to act under its direction;
(ii) the Trustee and the Security Agent may rely conclusively, and shall be protected in acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper person;
(iii) before the Trustee or the Security Agent act or refrain from acting, they may require an Officers Certificate or an Opinion of Counsel or both, which shall conform to Section 12.04. Neither the Trustee nor the Security Agent shall be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion and such certificate or opinion will be equal to complete authorization;
(iv) the Trustee and the Security Agent may act through their attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care by them hereunder;
(v) neither the Trustee nor the Security Agent shall be under any obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to the Trustee and the Security Agent security and/or indemnity (including by way of pre-funding) satisfactory to them against the costs, expenses and liabilities that might be incurred by them in compliance with such request or direction;
(vi) unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer will be sufficient if signed by an officer of such Issuer;
(vii) neither the Trustee nor the Security Agent shall be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers;
(viii) whenever, in the administration of this Indenture, the Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents, the Trustee and the Security Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee and the Security Agent (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers Certificate;
(ix) neither the Trustee nor the Security Agent shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee and the Security Agent, in their discretion, individually, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee or the Security Agent shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer personally or by agent or attorney;
(x) neither the Trustee nor the Security Agent shall be required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture;
(xi) in the event the Trustee or the Security Agent receives inconsistent or conflicting requests and indemnity from two or more groups of Holders, each representing less than a majority in aggregate principal amount of the Notes then outstanding, pursuant to the provisions of this Indenture, the Trustee and the Security Agent, in their discretion, may determine what action, if any, will be taken and shall incur no liability for their failure to act until such inconsistency or conflict is, in their reasonable opinion, resolved;
(xii) the permissive rights of the Trustee and the Security Agent to take the actions permitted by this Indenture will not be construed as an obligation or duty to do so;
(xiii) delivery of reports, information and documents to the Trustee under Section 4.19 is for informational purposes only and the Trustees receipt of the foregoing will not constitute actual or constructive notice of any information contained therein or determinable from information contained therein,
including the Parent Guarantors or any of its Restricted Subsidiarys compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates);
(xiv) the rights, privileges, protections, immunities and benefits given to each of the Trustee and the Security Agent in this Indenture, including, without limitation, its rights to be indemnified and compensated, are extended to, and will be enforceable by, the Trustee and the Security Agent in each of their capacities hereunder, by the Registrar, the Agents, and each agent, custodian and other Person employed to act hereunder;
(xv) the Trustee and the Security Agent may consult with counsel or other professional advisors and the advice of such counsel or professional advisor or any Opinion of Counsel will, subject to Section 7.01(c), be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(xvi) the Trustee and the Security Agent shall have no duty to inquire as to the performance of the covenants of the Parent Guarantor and/or its Restricted Subsidiaries in Article Four hereof;
(xvii) the Trustee and the Security Agent shall not have any obligation or duty to monitor, determine or inquire as to compliance, and shall not be responsible or liable for compliance with restrictions on transfer, exchange, redemption, purchase or repurchase, as applicable, of minimum denominations imposed under this Indenture or under applicable law or regulation with respect to any transfer, exchange, redemption, purchase or repurchase, as applicable, of any interest in any Notes, but may at its sole discretion, choose to do so;
(xviii) in no event shall the Trustee or the Security Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of, or caused by, directly or indirectly, forces beyond its control, including, without limitation, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances; and
(xix) neither the Trustee nor the Security Agent shall under any circumstance be liable for any indirect or consequential loss, special or punitive damages (including loss of business, goodwill or reputation, opportunity or profit of any kind) of the Issuer, any Guarantor or any Restricted Subsidiary even if advised of it in advance and even if foreseeable.
(b) The Trustee and the Security Agent may request that the Issuer deliver an Officers Certificate setting forth the names of the individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers Certificate may be signed by any person authorized to sign an Officers Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
(c) The Security Agent shall accept without investigation, requisition or objection such right and title as the Issuer and any Guarantor may have to any of the Collateral and shall not be bound or concerned to examine or enquire into or be liable for any defect or failure in the right or title of the Issuer or any Guarantor to the Collateral or any part thereof whether such defect or failure was known to the Security Agent or might have been discovered upon examination or enquiry and whether capable of remedy or not and shall have no responsibility for the validity, value or sufficiency of the Collateral.
(d) Without prejudice to the provisions hereof, the Security Agent shall not be under any obligation to insure any of the Collateral or any certificate, note, bond or other evidence in respect thereof, or to require any other person to maintain any such insurance and shall not be responsible for any loss, expense or liability which may be suffered as a result of any assets comprised in the Collateral being uninsured or inadequately insured.
(e) The Security Agent shall not be responsible for any loss, expense or liability occasioned to the Collateral, howsoever caused, by the Security Agent or by any act or omission on the part of any other person (including any bank, broker, depositary, warehouseman or other intermediary or by any clearing system or other operator thereof), or otherwise, unless such loss is occasioned by the willful misconduct or fraud of the Security Agent.
(f) Beyond the exercise of reasonable care in the custody thereof, the Security Agent shall have no duty or liability as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Security Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Security Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Security Agent in good faith.
(g) Neither the Trustee nor the Security Agent is required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture or the Notes.
(h) Neither the Trustee nor the Security Agent will be liable to any person if prevented or delayed in performing any of its obligations or discretionary functions under this Indenture by reason of any present or future law applicable to it, by any governmental or regulatory authority or by any circumstances beyond its control.
(i) No provision of this Indenture shall require the Trustee or the Security Agent to do anything which, in its opinion, may be illegal or contrary to applicable law or regulation.
(j) The Trustee and the Security Agent may refrain from taking any action in any jurisdiction if the taking of such action in that jurisdiction would, in its opinion, based upon legal advice in the relevant jurisdiction, be contrary to any law of that jurisdiction or, to the extent applicable, the State of New York and may without liability (other than in respect of actions constituting willful misconduct or gross negligence) do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
(k) Both the Trustee and the Security Agent may assume without inquiry in the absence of actual knowledge that the Issuer is duly complying with its obligations contained in this Indenture required to be performed and observed by it, and that no Default or Event of Default or other event which would require repayment of the Notes has occurred.
(l) At any time that the security granted pursuant to the Security Documents has become enforceable and the Holders have given a direction to the Trustee to enforce such security, the Trustee is not required to give any direction to the Security Agent with respect thereto unless it has been indemnified and/or secured to its satisfaction in accordance with this Indenture. In any event, in connection with any enforcement of such security, the Trustee is not responsible for:
(i) any failure of the Security Agent to enforce such security within a reasonable time or at all;
(ii) any failure of the Security Agent to pay over the proceeds of enforcement of the security;
(iii) any failure of the Security Agent to realize such security for the best price obtainable;
(iv) monitoring the activities of the Security Agent in relation to such enforcement;
(v) taking any enforcement action itself in relation to such security;
(vi) agreeing to any proposed course of action by the Security Agent which could result in the Trustee incurring any liability for its own account; or
(vii) paying any fees, costs or expenses of the Security Agent.
SECTION 7.03. Individual Rights of Trustee and the Security Agent. The Trustee, the Security Agent, any Transfer Agent, any Paying Agent, any Registrar or any other agent of the Issuer or of the Trustee or Security Agent, in its individual or any other capacity, may become the owner or pledgee of Notes and, may otherwise deal with the Issuer with the same rights it would have if it were not Trustee, the Security Agent, Paying Agent, Transfer Agent, Registrar or such other agent. The Trustee and the Security Agent may accept deposits from, lend money to, and generally engage in any kind of banking, trust or other business with the Issuer or any of its Affiliates or Subsidiaries as if it were not performing the duties specified herein, in the Intercreditor Agreement, any Additional Inter-creditor Agreement and in the Security Documents, and may accept fees and other consideration from the Issuer for services in connection with this Indenture and otherwise without having to account for the same to the Trustee, the Security Agent or to the Holders from time to time.
SECTION 7.04. Disclaimer of Trustee and Security Agent. The recitals contained herein and in the Notes, except for the Trustees certificates of authentication, shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for their correctness. The Trustee and the Security Agent make no representations as to the validity or sufficiency of this Indenture, the Intercreditor Agreement, the Notes or the Security Documents. The Trustee and the Security Agent shall not be accountable for the Issuers use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuers direction under any provision of this Indenture nor shall it be responsible for the use or application of any money received by any Paying Agent other than the Trustee and the Security Agent and they will not be responsible for any statement or recital herein or any statement on the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture or the Intercreditor Agreement other than the Trustees certificate of authentication. The Security Agent shall not, nor shall any receiver appointed by or any agent of the Security Agent, by reason of taking possession of any Collateral or any part thereof or any other reason or on any basis whatsoever, be liable to account for anything expect actual receipts or be liable for any loss or damage arising from a realization of the Collateral or any part thereof or from any act, default or omission in relation to the Collateral or any part thereof or from any exercise or non-exercise by it of any power, authority or discretion conferred upon it in relation to the Collateral or any part thereof unless such loss or damage shall be caused by its own fraud or gross negligence. The Security Agent shall not have any responsibility or liability arising from the fact that the Collateral may be held in safe custody by a custodian. The Security Agent assumes no responsibility for the validity, sufficiency or enforceability (which the Security Agent has not investigated) of the Collateral purported to be created by any Supplemental Indenture or other document. In addition, the Security Agent has no duty to monitor the performance by the Issuer and the Guarantors of their obligations to the Security Agent nor is it obliged (unless indemnified and/or secured (including by way of prefunding to its satisfaction) to take any other action which may involve the Security Agent in any personal liability or expense).
SECTION 7.05. Compensation and Indemnity. The Issuer, failing which the Guarantors, shall pay to the Trustee and the Security Agent such compensation as shall be agreed in writing for their services hereunder. The Trustees and the Security Agents compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer, failing which the Guarantors, shall reimburse the Trustee and the Security Agent promptly upon request for all properly incurred disbursements, advances or expenses incurred or made by them, including costs of collection, in addition to the compensation for their services. Such expenses shall include the properly incurred compensation, disbursements, charges, advances and expenses of the Trustees and the Security Agents agents and counsel.
The Issuer, failing which the Guarantors, shall indemnify the Trustee and the Security Agent against any and all loss, liability or expense (including attorneys fees and expenses) incurred by either of them without willful misconduct or gross negligence on their part arising out of or in connection with the administration of this trust and the performance of their duties hereunder (including the costs and expenses of enforcing this Indenture, the Inter-creditor Agreement, any Additional Intercreditor Agreement and the Security Documents against the Issuer and the Guarantors (including this Section 7.05) and defending themselves against any claim, whether asserted by the Issuer, the Guarantors, any Holder or any other Person, or liability in connection with the execution and performance of any of their powers and duties hereunder). The Trustee and the Security Agent shall notify the Issuer promptly of any
claim for which they may seek indemnity. Failure by the Trustee or the Security Agent to so notify the Issuer shall not relieve the Issuer or any Guarantor of its obligations hereunder. The Issuer shall, at the sole discretion of the Trustee or Security Agent, as applicable, defend the claim and the Trustee and the Security Agent may cooperate and may participate at the Issuers expense in such defense. Alternatively, the Trustee and the Security Agent may at their option have separate counsel of their own choosing and the Issuer shall pay the properly incurred fees and expenses of such counsel. The Issuer need not pay for any settlement made without its consent, which consent may not be unreasonably withheld. The Issuer shall not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustees own willful misconduct or gross negligence.
To secure the Issuers payment obligations in this Section 7.05, the Trustee and the Security Agent shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, in their capacity as Trustee and the Security Agent, except money or property, including any proceeds from the sale of Collateral, held in trust to pay principal of, premium, if any, additional amounts, if any, and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of all Notes under this Indenture.
When either the Trustee or the Security Agent incur expenses after the occurrence of a Default specified in Section 6.01(a)(9) with respect to the Issuer, the Guarantors, or any Restricted Subsidiary, the expenses are intended to constitute expenses of administration under Bankruptcy Law.
The Issuers obligations under this Section 7.05 and any claim or Lien arising hereunder shall survive the resignation or removal of any Trustee and the Security Agent, the satisfaction and discharge of the Issuers obligations pursuant to Article Eight and any rejection or termination under any Bankruptcy Law, and the termination of this Indenture.
SECTION 7.06. Replacement of Trustee or Security Agent. A resignation or removal of the Trustee and the Security Agent and appointment of a successor Trustee and successor Security Agent shall become effective only upon the successor Trustees and the successor Security Agents acceptance of appointment as provided in this Section 7.06.
The Trustee and, subject to the appointment and acceptance of a successor Security Agent as provided in this Section and the last paragraph of this Section 7.06, the Security Agent may resign at any time without giving any reason by so notifying the Issuer. The Holders of a majority in outstanding principal amount of the outstanding Notes may remove the Trustee and the Security Agent by so notifying the Trustee, the Security Agent and the Issuer. The Issuer shall remove the Trustee or the Security Agent if:
(a) the Trustee or the Security Agent fails to comply with Section 7.09;
(b) the Trustee or the Security Agent is adjudged bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Trustee or the Security Agent or their property; or
(d) the Trustee or the Security Agent otherwise becomes incapable of acting.
If the Trustee or the Security Agent resigns or is removed, or if a vacancy exists in the office of Trustee or the Security Agent for any reason, the Issuer shall promptly appoint a successor Trustee or a successor Security Agent, as the case may be. Within one year after the successor Trustee or Security Agent takes office, the Holders of a majority in principal amount of the outstanding Notes may appoint a successor Trustee or Security Agent to replace the successor Trustee or Security Agent appointed by the Issuer. If the successor Trustee or Security Agent does not deliver its written acceptance required by the next succeeding paragraph of this Section 7.06 within 30 days after the retiring Trustee or Security Agent resigns or is removed, the retiring Trustee or Security Agent, the Issuer or the Holders of a majority in principal amount of the outstanding Notes may, at the expense of the Issuer, petition any court of competent jurisdiction for the appointment of a successor Trustee or Security Agent.
A successor Trustee or Security Agent shall deliver a written acceptance of its appointment to the retiring Trustee or Security Agent, as the case may be, and to the Issuer. Thereupon the resignation or removal of the retiring Trustee or Security Agent shall become effective, and the successor Trustee or Security Agent shall have all the rights, powers and duties of the Trustee or the Security Agent under this Indenture. The successor Trustee or Security Agent shall mail a notice of its succession to Holders. The retiring Trustee or Security Agent shall, at the expense of the Issuer, promptly transfer all property held by it as Trustee or Security Agent to the successor Trustee or Security Agent; provided that all sums owing to the Trustee or Security Agent hereunder have been paid and subject to the Lien provided for in Section 7.05.
If a successor Trustee or Security Agent does not take office within 60 days after the retiring Trustee or Security Agent resigns or is removed, the retiring Trustee or Security Agent, the Issuer or the Holders of at least 25% in outstanding principal amount of the Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee or Security Agent at the expense of the Issuer. Without prejudice to the right of the Issuer to appoint a successor Trustee or a successor Security Agent in accordance with the provisions of this Indenture, the retiring Trustee or Security Agent may appoint a successor Trustee or Security Agent at any time prior to the date on which a successor Trustee or Security Agent takes office.
If the Trustee or the Security Agent fails to comply with Section 7.09, any Holder who has been a bona fide Holder of a Note for at least six months may petition any court of competent jurisdiction for the removal of the Trustee or the Security Agent and the appointment of a successor Trustee or Security Agent.
In addition to the foregoing and notwithstanding any provision to the contrary, any resignation, removal or replacement of the Security Agent pursuant to this Section 7.06 shall not be effective until (a) a successor to the Security Agent has agreed to act under the terms of this Indenture and (b) all of the Security Interests in the Collateral has been transferred to such successor. Any replacement or successor Security Agent shall be a bank with an office in New York, New York or London, England, or an Affiliate of any such bank. Upon acceptance of its appointment as Security Agent hereunder by a replacement or successor, such replacement or successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Security Agent hereunder, and the retiring Security Agent shall be discharged from its duties and obligations hereunder.
Notwithstanding the replacement of the Trustee or the Security Agent pursuant to this Section 7.06, the Is-suers and the Guarantors obligations under Section 7.05 shall continue for the benefit of the retiring Trustee or Security Agent.
SECTION 7.07. Successor Trustee or Security Agent by Merger. Any corporation into which the Trustee or the Security Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee or the Security Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee or the Security Agent, shall be the successor of the Trustee or the Security Agent hereunder; provided such corporation shall be otherwise qualified and eligible under this Article Seven, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes. In case at that time any of the Notes shall not have been authenticated, any successor Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee shall have; provided that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Notes in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
SECTION 7.08. Appointment of Security Agent and Supplemental Security Agents. The parties hereto acknowledge and agree, and each Holder by accepting the Notes acknowledges and agrees, that the Issuer hereby appoints Citibank, N.A., London Branch to act as Security Agent hereunder, and Citibank, N.A., London Branch accepts such appointment. Each Holder, by accepting the Notes, authorizes and expressly directs the Trustee and the Security Agent on such Holders behalf to enter into the Intercreditor Agreement and any Additional Intercredi-tor Agreement and the Trustee and the Holders acknowledge that the Security Agent will be acting in respect to the
Security Documents and the security granted thereunder on the terms outlined therein (which terms in respect of the rights and protections of the Security Agent, in the event of an inconsistency with the terms of this Indenture, will prevail).
(a) The Security Agent may perform any of its duties and exercise any of its rights and powers through one or more sub-agents or co-trustees appointed by it. The Security Agent and any such sub-agent or co-trustee may perform any of its duties and exercise any of its rights and powers through its affiliates. All of the provisions of this Indenture applicable to the Security Agent including, without limitation, its rights to be indemnified, shall apply to and be enforceable by any such sub-agent and affiliates of a Security Agent and any such sub-agent or co-trustee. All references herein to a Security Agent shall include any such sub-agent or co-trustee and affiliates of a Security Agent or any such sub-agent or co-trustee.
(b) It is the purpose of this Indenture, the Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents that there shall be no violation of any Law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as agent or trustee in such jurisdiction. Without limiting paragraph (a) of this Section, it is recognized that in case of litigation under, or enforcement of, this Indenture, the Intercreditor Agreement, any Additional Intercreditor Agreement or any of the Security Documents, or in case the Security Agent deems that by reason of any present or future law of any jurisdiction it may not exercise any of the rights, powers or remedies granted herein or in any of the Security Documents or take any other action which may be desirable or necessary in connection therewith, the Security Agent is hereby authorized to appoint an additional individual or institution selected by the Security Agent in its sole discretion as a separate trustee, co-trustee, administrative agent, Security Agent, administrative sub-agent or administrative co-agent (any such additional individual or institution being referred to herein individually as a Supplemental Security Agent and collectively as Supplemental Security Agents).
(c) In the event that the Security Agent appoints a Supplemental Security Agent with respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended by this Indenture or any of the other Security Documents to be exercised by or vested in or conveyed to such Security Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Security Agent to the extent, and only to the extent, necessary to enable such Supplemental Security Agent to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Security Documents and necessary to the exercise or performance thereof by such Supplemental Security Agent shall run to and be enforceable by either such Security Agent or such Supplemental Security Agent, and (ii) the provisions of this Indenture (and, in particular, this Article Seven) that refer to the Security Agent shall inure to the benefit of such Supplemental Security Agent and all references therein to the Security Agent shall be deemed to be references to a Security Agent and/or such Supplemental Security Agent, as the context may require.
(d) Should any instrument in writing from the Issuer or any other obligor be required by any Supplemental Security Agent so appointed by the Security Agent for more fully and certainly vesting in and confirming to him or it such rights, powers, privileges and duties, the Parent Guarantor shall, or shall cause the Issuer and relevant Guarantor to, execute, acknowledge and deliver any and all such instruments promptly upon request by the Security Agent. In case any Supplemental Security Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Security Agent, to the extent permitted by Law, shall vest in and be exercised by the Security Agent until the appointment of a new Supplemental Security Agent.
SECTION 7.09. Eligibility; Disqualification. There will at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of England and Wales or the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power and which is generally recognized as a corporation which customarily performs such corporate trustee roles and provides such corporate trustee services in transactions similar in nature to the offering of the Notes as described in the Offering Memorandum.
SECTION 7.10. Appointment of Co-Trustee.
(a) It is the purpose of this Indenture that there shall be no violation of any law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as trustee in such jurisdiction. It is recognized that in case of litigation under this Indenture, and in particular in case of the enforcement thereof on Default, or in the case the Trustee deems that by reason of any present or future law of any jurisdiction it may not exercise any of the powers, rights or remedies herein granted to the Trustee or hold title to the properties, in trust, as herein granted or take any action which may be desirable or necessary in connection therewith, it may be necessary that the Trustee appoint an individual or institution as a separate or co-trustee. The following provisions of this Section 7.10 are adopted to these ends.
(b) In the event that the Trustee appoints an additional individual or institution as a separate or co-trustee, each and every remedy, power, right, claim, demand, cause of action, immunity, estate, title, interest and Lien expressed or intended by this Indenture to be exercised by or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and vest in such separate or co-trustee but only to the extent necessary to enable such separate or co-trustee to exercise such powers, rights and remedies, and only to the extent that the Trustee by the laws of any jurisdiction is incapable of exercising such powers, rights and remedies, and every covenant and obligation necessary to the exercise thereof by such separate or co-trustee shall run to and be enforceable by either of them.
(c) Should any instrument in writing from the Issuer be required by the separate or co-trustee so appointed by the Trustee for more fully and certainly vesting in and confirming to him or it such properties, rights, powers, trusts, duties and obligations, any and all such instruments in writing shall to the extent permitted by the laws of the State of New York and the jurisdictions of organization of the Issuer, on request, be executed, acknowledged and delivered by the Issuer; provided that if an Event of Default shall have occurred and be continuing, if the Issuer do not execute any such instrument within 15 days after request therefor, the Trustee shall be empowered as an attorney-in-fact for the Issuer to execute any such instrument in the Issuers name and stead. In case any separate or co-trustee or a successor to either shall die, become incapable of acting, resign or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of such separate or co-trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the appointment of a new trustee or successor to such separate or co-trustee.
(d) Each separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(i) all rights and powers, conferred or imposed upon the Trustee shall be conferred or imposed upon and may be exercised or performed by such separate trustee or co-trustee; and
(ii) no trustee hereunder shall be liable by reason of any act or omission of any other trustee hereunder.
(e) Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture and the conditions of this Article Seven.
(f) Any separate trustee or co-trustee may at any time appoint the Trustee as its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Indenture on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successors trustee.
SECTION 7.11. Resignation of Agents.
(a) Any Agent may resign its appointment hereunder at any time without the need to give any reason and without being responsible for any costs associated therewith by giving to the Issuer and the Trustee and (except
in the case of resignation of the Principal Paying Agent) the Principal Paying Agent 30 days written notice to that effect (waivable by the Issuer and the Trustee); provided that in the case of resignation of the Principal Paying Agent no such resignation shall take effect until a new Principal Paying Agent (approved in advance in writing by the Trustee) shall have been appointed by the Issuer to exercise the powers and undertake the duties hereby conferred and imposed upon the Principal Paying Agent. Following receipt of a notice of resignation from any Agent, the Issuer shall promptly give notice thereof to the Holders in accordance with Section 12.02. Such notice shall expire at least 30 days before or after any due date for payment in respect of the Notes.
(b) If any Agent gives notice of its resignation in accordance with this Section 7.11 and a replacement Agent is required and by the tenth day before the expiration of such notice such replacement has not been duly appointed, such Agent may itself appoint as its replacement any reputable and experienced financial institution. Immediately following such appointment, the Issuer shall give notice of such appointment to the Trustee, the remaining Agents and the Holders whereupon the Issuer, the Trustee, the remaining Agents and the replacement Agent shall acquire and become subject to the same rights and obligations between themselves as if they had entered into an agreement in the form mutatis mutandis of this Indenture.
(c) Upon its resignation becoming effective the Principal Paying Agent shall forthwith transfer all moneys held by it hereunder hereof to the successor Principal Paying Agent or, if none, the Trustee or to the Trus-tees order, but shall have no other duties or responsibilities hereunder, and shall be entitled to the payment by the Issuer of its remuneration for the services previously rendered hereunder and to the reimbursement of all reasonable expenses (including legal fees) incurred in connection therewith.
SECTION 7.12. Agents General Provisions.
(a) Actions of Agents. The rights, powers, duties and obligations and actions of each Agent under this Indenture are several and not joint or joint and several.
(b) Agents of Trustee. The Issuer and the Agents acknowledge and agree that in the event of a Default or Event of Default, the Trustee may, by notice in writing to the Issuer and the Agents, require that the Agents act as agents of, and take instructions exclusively from, the Trustee. Prior to receiving such written notification from the Trustee, the Agents shall be the agents of the Issuer and need have no concern for the interests of the Holders.
(c) Funds held by Agents. The Agents will hold all funds as banker subject to the terms of this Indenture and as a result, such money will not be held in accordance with the rules established by the Financial Conduct Authority in the Financial Conduct Authoritys Handbook of rules and guidance from time to time in relation to client money.
(d) Publication of Notices. Any obligation the Agents may have to publish a notice to Holders of Global Notes on behalf of the Issuer will be met upon delivery of the notice to DTC.
(e) Instructions. In the event that instructions given to any Agent are not reasonably clear, then such Agent shall be entitled to seek clarification from the Issuer or other party entitled to give the Agents instructions under this Indenture by written request promptly, and in any event within one Business Day of receipt by such Agent of such instructions. If an Agent has sought clarification in accordance with this Section 7.12, then such Agent shall be entitled to take no action until such clarification is provided, and shall not incur any liability for not taking any action pending receipt of such clarification.
(f) No Fiduciary Duty. No Agent shall be under any fiduciary duty or other obligation towards, or have any relationship of agency or trust, for or with any person other than the Issuer.
(g) Mutual Undertaking. Each party shall, within ten Business Days of a written request by another party, supply to that other party such forms, documentation and other information relating to it, its operations, or the Notes as that other party reasonably requests for the purposes of that other partys compliance with applicable law and shall notify the relevant other party reasonably promptly in the event that it becomes aware that any of the forms, documentation or other information provided by such party is (or becomes) inaccurate in any material respect;
provided, however, that no party shall be required to provide any forms, documentation or other information pursuant to this Section 7.12(g) to the extent that: (i) any such form, documentation or other information (or the information required to be provided on such form or documentation) is not reasonably available to such party and cannot be obtained by such party using reasonable efforts; or (ii) doing so would or might in the reasonable opinion of such party constitute a breach of any: (a) applicable law; (b) fiduciary duty; or (c) duty of confidentiality. For purposes of this Section 7.12(g), applicable law shall be deemed to include (i) any rule or practice of any regulatory or governmental authority by which any party is bound or with which it is accustomed to comply; (ii) any agreement between any Authorities; and (iii) any agreement between any regulatory or governmental authority and any party that is customarily entered into by institutions of a similar nature.
(h) Tax Withholding.
(i) The Issuer shall notify each Agent in the event that it determines that any payment to be made by an Agent under the Notes is a payment which could be subject to FATCA Withholding if such payment were made to a recipient that is generally unable to receive payments free from FATCA Withholding, and the extent to which the relevant payment is so treated; provided, however, that the Issuers obligations under this Section 7.12(h) shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Notes, or both.
(ii) Notwithstanding any other provision of this Indenture, each Agent shall be entitled to make a deduction or withholding from any payment which it makes under the Notes for or on account of any Tax, if and only to the extent so required by Applicable Law, in which event the Agent shall make such payment after such deduction or withholding has been made and shall account to the relevant Authority within the time allowed for the amount so deducted or withheld or, at its option, shall reasonably promptly after making such payment return to the Issuer the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount. For the avoidance of doubt, FATCA Withholding is a deduction or withholding which is deemed to be required by Applicable Law for the purposes of this Section 7.12(h)(ii).
ARTICLE EIGHT
DEFEASANCE; SATISFACTION AND DISCHARGE
SECTION 8.01. Issuers Option to Effect Defeasance or Covenant Defeasance. The Issuer may, at its option and at any time prior to the Stated Maturity of the Notes, by a resolution of its Board of Directors, elect to have either Section 8.02 or Section 8.03 be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article Eight.
SECTION 8.02. Defeasance and Discharge. Upon the Issuers exercise under Section 8.01 of the option applicable to this Section 8.02, the Issuer and the Guarantors shall be deemed to have been discharged from their obligations with respect to the Notes on the date the conditions set forth in Section 8.04 are satisfied (hereinafter, Legal Defeasance). For this purpose, such Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes and to have satisfied all their other obligations under the Notes and this Indenture (and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receive, solely from the trust fund described in Section 8.08 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any, on) and interest (including Additional Amounts) on such Notes when such payments are due, (b) the Issuers obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust, (c) the rights, powers, trusts, duties and immunities of the Trustee and the Security Agent hereunder and the Issuers and the Guarantors obligations in connection therewith and (d) the provisions of this Article Eight. Subject to compliance with this Article Eight, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 below with respect to the Notes. If the Issuer exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default.
SECTION 8.03. Covenant Defeasance. Upon the Issuers exercise under Section 8.01 of the option applicable to this Section 8.03, the Issuer and the Guarantors shall be released from their obligations under any covenant contained in Sections 4.04 through 4.11, 4.13 through 4.17, 4.19 through 4.21, 4.24 and 5.01 with respect to the Notes on and after the date the conditions set forth below are satisfied (hereinafter, Covenant Defeasance). For this purpose, such Covenant Defeasance means that, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.
SECTION 8.04. Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, or interest (including Additional Amounts and premium, if any) on the outstanding Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be, and the Parent Guarantor must specify whether the Notes are being defeased to such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasance, the Issuer must deliver to the Trustee:
(a) an opinion of United States counsel, which counsel is reasonably acceptable to the Trustee, confirming that (i) the Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling or (ii) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion of counsel will confirm that, the holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; and
(b) an Opinion of Counsel in the jurisdiction of incorporation of the Issuer, which counsel is reasonably acceptable to the Trustee, to the effect that the holders of the Notes will not recognize income, gain or loss for tax purposes of such jurisdiction as a result of such deposit and defeasance and will be subject to tax in such jurisdiction on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Issuer must deliver to the Trustee:
(a) an opinion of United States counsel, which counsel is reasonably acceptable to the Trustee, confirming that the holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; and
(b) an opinion of counsel in the jurisdiction of incorporation of the Issuer, which counsel is reasonably acceptable to the Trustee, to the effect that the holders of the Notes will not recognize income, gain or loss for tax purposes of such jurisdiction as a result of such deposit and defeasance and will be subject to tax in such jurisdiction on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(4) no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Indebtedness), and the granting of Liens to secure such borrowings);
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, the Revolving Credit Facility or any other material agreement or instrument (other than this Indenture and the agreements governing any other Indebtedness being defeased, discharged or replaced) to which the Issuer or any of the Guarantors is a party or by which the Issuer or any of the Guarantors is bound;
(6) the Issuer must deliver to the Trustee an Officers Certificate stating that the deposit was not made by the Issuer with the intent of preferring the holders of Notes over the other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or others; and
(7) the Issuer must deliver to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of, premium, if any, and interest on the Notes when due because of any acceleration occurring after an Event of Default, then the Issuer and the Guarantors shall remain liable for such payments.
SECTION 8.05. Satisfaction and Discharge of Indenture. This Indenture, and the rights of the Trustee and the Holders of the Notes under the Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents, shall be discharged and shall cease to be of further effect as to all Notes issued thereunder, when:
(1) either:
(a) all Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has been deposited in trust and thereafter repaid to the Issuer, have been delivered to the Trustee for cancellation; or
(b) all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the mailing of a notice of redemption or otherwise or will become due and payable within one year and the Issuer or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the holders, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium and Additional Amounts, if any, and accrued interest to the date of maturity or redemption;
(2) the Issuer or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture;
(3) the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case maybe; and
(4) the Issuer has delivered an Officers Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied; provided that any
such counsel may rely on any Officers Certificate as to matters of fact (including as to compliance with the foregoing clauses (1), (2) and (3)).
SECTION 8.06. Survival of Certain Obligations. Notwithstanding Sections 8.01 and 8.03, any obligations of the Issuer, the Parent Guarantor and the Subsidiary Guarantors in Sections 2.02 through 2.14, 6.07, 7.05 and 7.06 shall survive until the Notes have been paid in full. Thereafter, any obligations of the Issuer or the Parent Guarantor and the Subsidiary Guarantors in Section 7.05 shall survive such satisfaction and discharge. Nothing contained in this Article Eight shall abrogate any of the obligations or duties of the Trustee under this Indenture.
SECTION 8.07. Acknowledgment of Discharge by Trustee. Subject to Section 8.09, after the conditions of Section 8.02 or 8.03 have been satisfied, the Trustee upon written request shall acknowledge in writing the discharge of all of the Issuers, Parent Guarantors and Subsidiary Guarantors obligations under this Indenture except for those surviving obligations specified in this Article Eight.
SECTION 8.08. Application of Trust Money. Subject to Section 8.09, the Trustee shall hold in trust cash in U.S. dollars or U.S. Government Obligations deposited with it pursuant to this Article Eight. It shall apply the deposited cash or Government Securities through the Paying Agent and in accordance with this Indenture to the payment of principal of, premium, if any, interest, and Additional Amounts, if any, on the Notes; but such money need not be segregated from other funds except to the extent required by law.
SECTION 8.09. Repayment to Issuer. Subject to Sections 7.05, and 8.01 through 8.04, the Trustee and the Paying Agent shall promptly pay to the Issuer upon request set forth in an Officers Certificate any excess money held by them at any time and thereupon shall be relieved from all liability with respect to such money. The Trustee and the Paying Agent shall pay to the Issuer upon request any money held by them for the payment of principal, premium, if any, interest or Additional Amounts, if any, that remains unclaimed for two years; provided that the Trustee or Paying Agent before being required to make any payment may cause to be published through the newswire service of Bloomberg or, if Bloomberg does not then operate, any similar agency or mail to each Holder entitled to such money at such Holders address (as set forth in the Security Register) notice that such money remains unclaimed and that after a date specified therein (which shall be at least 30 days from the date of such publication or mailing) any unclaimed balance of such money then remaining will be repaid to the Issuer. After payment to the Issuer, Holders entitled to such money must look to the Issuer for payment as general creditors unless an applicable law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such money shall cease.
SECTION 8.10. Indemnity for Government Securities. The Issuer or the Parent Guarantor shall pay and shall indemnify the Trustee and the Paying Agent against any tax, fee or other charge imposed on or assessed against deposited Government Securities or the principal, premium, if any, interest, if any, and Additional Amounts, if any, received on such Government Securities.
SECTION 8.11. Reinstatement. If the Trustee or Paying Agent is unable to apply cash in dollars or Government Securities in accordance with this Article Eight by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuers and the Guarantors obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this Article Eight until such time as the Trustee or any such Paying Agent is permitted to apply all such cash or Government Securities in accordance with this Article Eight; provided that, if the Issuer has made any payment of principal of, premium, if any, interest, if any, and Additional Amounts, if any, on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the cash in dollars or Government Securities held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
(a) The Issuer, when authorized by a resolution of its Board of Directors (as evidenced by the delivery of such resolutions to the Trustee), the Guarantors, the Security Agent and the Trustee may modify, amend or supplement this Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents without notice to or consent of any Holder:
(1) to cure any ambiguity, omission, error, defect or inconsistency;
(2) to provide for the assumption of the Issuers or a Guarantors obligations to Holders of Notes and Note Guarantees in the case of a consolidation or merger or sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the Issuers or such Guarantors assets, as applicable;
(3) to make any change that would provide any additional rights or benefits to the Holders of Notes or that, in the good faith judgment of the Board of Directors of the Parent Guarantor, does not adversely affect the legal rights under this Indenture of any such holder in any material respect;
(4) to conform the text of this Indenture, the Notes or the Note Guarantees to any provision of the section entitled Description of Notes in the Offering Memorandum to the extent that such provision in the Description of Notes was intended to be a verbatim recitation of a provision of this Indenture, the Notes or the Note Guarantees;
(5) to provide for any Restricted Subsidiary to provide a Note Guarantee in accordance with Section 4.06 and Section 4.15 to add security to or for the benefit of the Notes or to confirm and evidence the release, termination, discharge or retaking of any Note Guarantee or Lien (including the Collateral and the Security Documents) or any amendment in respect thereof with respect to or securing the Notes when such release, termination, discharge or retaking or amendment is permitted under this Indenture, the Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents;
(6) in the case of the Security Documents, to mortgage, pledge, hypothecate or grant a security interest in favor of the Security Agent for the benefit of lenders under the Revolving Credit Facility, in any property which is required by the Revolving Credit Facility (as in effect on the First Escrow Release Date) to be mortgaged, pledged or hypothecated, or in which a security interest is required to be granted to the Security Agent, or to the extent necessary to grant a security interest for the benefit of any Person; provided that the granting of such security interest is not prohibited by this Indenture and Section 4.22 is complied with;
(7) to provide for the issuance of additional Notes in accordance with the limitations set forth in this Indenture as of the Issue Date;
(8) to allow any Guarantor to execute a Supplemental Indenture and a Note Guarantee with respect to the Notes;
(9) to provide for uncertificated Notes in addition to or in place of Definitive Registered Notes (provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the Code); or
(10) to evidence and provide the acceptance of the appointment of a successor Trustee under this Indenture.
(b) In connection with any proposed amendment or supplement in respect of such matters, the Trustee will be entitled to receive, and rely conclusively on, an Opinion of Counsel and/or an Officers Certificate.
SECTION 9.02. With Consent of Holders.
(a) Except as provided in Section 9.02(b) below and Section 6.04 and without prejudice to Section 9.01, this Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), and any existing Default or Event of Default or compliance with any provision of this Indenture, the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes).
(b) Without the consent of each Holder affected, an amendment, supplement or waiver may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose holders must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Note or reduce the premium payable upon the redemption of any such Note or change the time at which such Note may be redeemed;
(3) reduce the rate of or change the time for payment of interest, including default interest, on any Note;
(4) impair the right of any Holder to institute suit for the enforcement of any payment on or with respect to such Holders Notes or any Note Guarantee in respect thereof;
(5) waive a Default or Event of Default in the payment of principal of, or interest, Additional Amounts or premium, if any, on, the Notes (except a rescission of acceleration of the Notes by the holders of at least a majority in aggregate principal amount of the then outstanding Notes and a waiver of the payment Default that resulted from such acceleration);
(6) make any Note payable in money other than that stated in the Notes;
(7) make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of holders of Notes to receive payments of principal of, or interest, Additional Amounts or premium, if any, on, the Notes;
(8) waive a redemption payment with respect to any Note (other than a payment required by Section 4.09 or Section 4.11);
(9) make any change to or modify the ranking of the Notes in a manner that would adversely affect the holders thereof;
(10) release any Guarantor from any of its obligations under its Note Guarantee or this Indenture, except in accordance with the terms of this Indenture, the Intercreditor Agreement or any Additional Intercreditor Agreement;
(11) release the security interest granted in the Collateral for the benefit of the Trustee and the Holders of the Notes, other than pursuant to the terms of the Security Documents or this Indenture, as applicable, except as permitted by the Intercreditor Agreement or any Additional Intercreditor Agreement; or
(12) make any change in the preceding amendment and waiver provisions.
(c) The consent of the Holders shall not be necessary under this Indenture to approve the particular form of any proposed amendment, modification, supplement, waiver or consent. It is sufficient if such consent approves the substance of the proposed amendment, modification, supplement, waiver or consent. A consent to any amendment or waiver under this Indenture by any Holder given in connection with a tender of such Holders Notes will not be rendered invalid by such tender.
SECTION 9.03. Effect of Supplemental Indentures. Upon the execution of any Supplemental Indenture under this Article Nine, this Indenture shall be modified in accordance therewith, and such Supplemental Indenture shall form a part of this Indenture for all purposes; and every Holder theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.04. Notation on or Exchange of Notes. If an amendment, modification or supplement changes the terms of a Note, the Issuer or the Trustee may require the Holder to deliver it to the Trustee. The Trustee may place an appropriate notation on the Note and on any Note subsequently authenticated regarding the changed terms and return it to the Holder. Alternatively, if the Issuer so determines, the Issuer in exchange for the Note shall issue, and the Trustee shall authenticate, a new Note that reflects the changed terms. Failure to make the appropriate notation or to issue a new Note shall not affect the validity of such amendment, modification or supplement.
SECTION 9.05. [Reserved].
SECTION 9.06. Notice of Amendment or Waiver. Promptly after the execution by the Issuer and the Trustee of any Supplemental Indenture or waiver pursuant to the provisions of Section 9.02, the Issuer shall give notice thereof to the Holders of each outstanding Note affected, in the manner provided for in Section 12.02(b), setting forth in general terms the substance of such Supplemental Indenture or waiver.
SECTION 9.07. Trustee to Sign Amendments, Etc. The Trustee or the Security Agent, as the case may be, shall execute any amendment, supplement or waiver authorized pursuant and adopted in accordance with this Article Nine; provided that the Trustee or the Security Agent, as the case may be, may, but shall not be obligated to, execute any such amendment, supplement or waiver which affects the Trustees or Security Agents, as the case may be, own rights, duties or immunities under this Indenture. The Trustee and the Security Agent shall be entitled to receive, if requested, an indemnity and/or security (including by way of pre-funding) satisfactory to it and to receive, and shall be fully protected in relying upon, an Opinion of Counsel and an Officers Certificate each stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article Nine is authorized or permitted by this Indenture and that such amendment has been duly authorized, executed and delivered and is the legally valid and binding obligation of the Issuer and the Guarantors (if any) enforceable against them in accordance with its terms, subject to customary exceptions. Such Opinion of Counsel shall be an expense of the Issuer.
SECTION 9.08. Additional Voting Terms; Calculation of Principal Amount.
(a) All Notes issued under this Indenture shall vote and consent together on all matters (as to which any of such Notes may vote) as one class and no series of Notes will have the right to vote or consent as a separate series on any matter; provided, however, that if any amendment, waiver or other modification will only affect one series of Notes, only the consent of the Holders of not less than a majority in principal amount of the affected series of Notes then outstanding (and not the consent of the Holders of at least a majority of all Notes), shall be required. Determinations as to whether Holders of the requisite aggregate principal amount of Notes have concurred in any direction, waiver or consent shall be made in accordance with this Article Nine and Section 9.08(b).
(b) The aggregate principal amount of the Notes, at any date of determination, shall be the principal amount of the Notes at such date of determination. With respect to any matter requiring consent, waiver, approval or other action of the Holders of a specified percentage of the principal amount of all the Notes, such percentage shall be calculated, on the relevant date of determination, by dividing (i) the principal amount, as of such date of determination, of Notes, the Holders of which have so consented by (b) the aggregate principal amount, as of such
date of determination, of the Notes then outstanding, in each case, as determined in accordance with the preceding sentence, Section 2.08 and Section 2.09 of this Indenture. Any such calculation made pursuant to this Section 9.08(b) shall be made by the Issuer and delivered to the Trustee pursuant to an Officers Certificate.
ARTICLE TEN
GUARANTEE
SECTION 10.01. Note Guarantees.
(a) The Guarantors, by execution of a Supplemental Indenture, fully and, subject to the limitations on the effectiveness and enforceability set forth in such Supplemental Indenture, unconditionally guarantee, on a joint and several basis to each Holder and to the Trustee and its successors and assigns on behalf of each Holder, the full payment of principal of, premium, if any, interest, if any, and Additional Amounts, if any, on, and all other monetary obligations of the Issuer under this Indenture and the Notes (including obligations to the Trustee and the Security Agent and the obligations to pay Additional Amounts, if any) with respect to, each Note authenticated and delivered by the Trustee or its agent pursuant to and in accordance with this Indenture, in accordance with the terms of this Indenture (all the foregoing being hereinafter collectively called the Obligations). The Guarantors further agree that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from the Guarantors and that the Guarantors shall remain bound under this Article Ten notwithstanding any extension or renewal of any Obligation. All payments under each Note Guarantee will be made in U.S. dollars.
(b) The Guarantors hereby agree that their obligations hereunder shall be as if they were each principal debtor and not merely surety, unaffected by, and irrespective of, any invalidity, irregularity or unenforceability of any Note or this Indenture, any failure to enforce the provisions of any Note or this Indenture, any waiver, modification or indulgence granted to the Issuer with respect thereto by the Holders or the Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor (except payment in full); provided that notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall without the written consent of the Guarantors increase the principal amount of a Note or the interest rate thereon or change the currency of payment with respect to any Note, or alter the Stated Maturity thereof. The Guarantors hereby waive diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Issuer, any right to require that the Trustee pursue or exhaust its legal or equitable remedies against the Issuer prior to exercising its rights under a Note Guarantee (including, for the avoidance of doubt, any right which a Guarantor may have to require the seizure and sale of the assets of the Issuer to satisfy the outstanding principal of, interest on or any other amount payable under each Note prior to recourse against such Guarantor or its assets), protest or notice with respect to any Note or the Indebtedness evidenced thereby and all demands whatsoever, and each covenant that their Note Guarantee will not be discharged with respect to any Note except by payment in full of the principal thereof and interest thereon or as otherwise provided in this Indenture, including Section 10.04. If at any time any payment of principal of, premium, if any, interest, if any, or Additional Amounts, if any, on such Note is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Issuer, the Guarantors obligations hereunder with respect to such payment shall be reinstated as of the date of such rescission, restoration or returns as though such payment had become due but had not been made at such times.
(c) The Guarantors also agree to pay any and all costs and expenses (including reasonable attorneys fees) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
SECTION 10.02. Subrogation.
(a) Each Guarantor shall be subrogated to all rights of the Holders against the Issuer in respect of any amounts paid to such Holders by such Guarantor pursuant to the provisions of its Note Guarantee.
(b) The Guarantors agree that they shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations. The Guarantors further agree that, as between them, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Section 6.02 for the purposes of the Note Guarantees herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations
as provided in Section 6.02, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purposes of this Section 10.02.
SECTION 10.03. Release of Note Guarantees. The Note Guarantee of a Subsidiary Guarantor shall automatically be released:
(1) in connection with any sale or other disposition of all or substantially all of the assets of such Subsidiary Guarantor (including by way of merger, consolidation, amalgamation or combination) to a Person that is not (either before or after giving effect to such transaction) the Parent Guarantor or a Restricted Subsidiary, if the sale or other disposition does not violate Section 4.09;
(2) in connection with any sale or other disposition of Capital Stock of that Subsidiary Guarantor to a Person that is not (either before or after giving effect to such transaction) the Parent Guarantor or a Restricted Subsidiary, if the sale or other disposition does not violate Section 4.09 and the Subsidiary Guarantor ceases to be a Restricted Subsidiary as a result of the sale or other disposition;
(3) if the Parent Guarantor designates such Subsidiary Guarantor to be an Unrestricted Subsidiary in accordance with the applicable provisions of this Indenture;
(4) upon the full and final payment of the Notes and performance of all Obligations of the Issuer and the Guarantors under this Indenture, the Notes and the Note Guarantees;
(5) upon Legal Defeasance, Covenant Defeasance or satisfaction and discharge of the Notes, the Note Guarantees and this Indenture as provided under Article Eight;
(6) in connection with enforcement actions as provided under the Intercreditor Agreement; or
(7) as described under Article Nine;
provided that, in each case, such Subsidiary Guarantor has delivered to the Trustee an Officers Certificate stating that all conditions precedent provided for in this Indenture relating to such release have been complied with.
The Note Guarantee of the Parent Guarantor shall automatically be released upon any of the circumstances described in clauses (4), (5), (6) and (7) of the immediately preceding paragraph; provided that, in each case, the Parent Guarantor has delivered to the Trustee an Officers Certificate stating that all conditions precedent provided for in this Indenture relating to such release have been complied with.
The Trustee shall take all necessary actions, including the granting of releases or waivers under the Inter-creditor Agreement or any Additional Intercreditor Agreement, to effectuate any release of a Note Guarantee in accordance with these provisions. Each of the releases set forth above shall be effected by the Trustee without the consent of the Holders and will not require any other action or consent on the part of the Trustee.
SECTION 10.04. Limitation and Effectiveness of Note Guarantees. Each Note Guarantee is limited to (i) an amount not to exceed the maximum amount that can be guaranteed by the Guarantor that gave such Note Guarantee without rendering such Note Guarantee, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally or (ii) the maximum amount otherwise permitted by law. Notwithstanding any provisions to the contrary in this Indenture, the obligations and liabilities of the Guarantors under their respective Note Guarantees shall be limited by the applicable local provisions and laws set forth on Schedule IV attached hereto (as may be supplemented pursuant to a Supplemental Indenture in accordance with this Indenture).
SECTION 10.05. Notation Not Required. Neither the Issuer nor any Guarantor shall be required to make a notation on the Notes to reflect any Note Guarantee or any release, termination or discharge thereof.
SECTION 10.06. Successors and Assigns. This Article Ten shall be binding upon the Guarantors and each of their successors and assigns and shall inure to the benefit of the successors and assigns of the Trustee, the Security Agent and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee or the Security Agent, the rights and privileges conferred upon that party in this Indenture and in the Notes shall automatically extend to and be vested in such transferee or assigns, all subject to the terms and conditions of this Indenture.
SECTION 10.07. No Waiver. Neither a failure nor a delay on the part of the Trustee, the Security Agent or the Holders in exercising any right, power or privilege under this Article Ten shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and benefits of the Trustee, the Security Agent and the Holders herein expressly specified are cumulative and are not exclusive of any other rights, remedies or benefits which either may have under this Article Ten at law, in equity, by statute or otherwise.
SECTION 10.08. Modification. No modification, amendment or waiver of any provision of this Article Ten, nor the consent to any departure by any Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Trustee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Guarantor in any case shall entitle such Guarantor to any other or further notice or demand in the same, similar or other circumstance.
ARTICLE ELEVEN
SECURITY
SECTION 11.01. Security; Security Documents.
(a) The due and punctual payment of the principal of, interest on and Additional Amounts, if any, on the Notes and the Note Guarantees when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and Note Guarantees and performance of all other obligations under this Indenture, shall be secured as provided in the Security Documents. The Trustee, the Security Agent, the Issuer and the Guarantors hereby agree that, subject to Permitted Collateral Liens, the Security Agent shall hold the Collateral in trust for the benefit of itself, the Trustee and all of the Holders pursuant to the terms of the Security Documents, and shall act as mortgagee or security holder under all mortgages or standard securities, beneficiary under all deeds of trust and as secured party under the applicable security agreements.
(b) Each Holder of the Notes, by its acceptance thereof, consents and agrees to the terms of the Security Documents (including, without limitation, the provisions providing for foreclosure and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and authorizes and directs the Security Agent to perform its respective obligations and exercise its rights thereunder in accordance therewith.
(c) The Trustee, the Security Agent and each Holder, by accepting the Notes and the Note Guarantees, acknowledges that, as more fully set forth in the Security Documents, the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders under the Security Documents, and that the Lien of this Indenture and the Security Documents in respect of the Security Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and actions that may be taken thereunder.
(d) Notwithstanding (i) anything to the contrary contained in this Indenture, the Security Documents, the Notes, the Note Guarantees or any other instrument governing, evidencing or relating to any Indebtedness, (ii) the time, order or method of attachment of any Liens, (iii) the time or order of filing or recording of financing statements or other documents filed or recorded to perfect any Lien upon any Collateral, (iv) the time of taking possession or control over any Collateral or (v) the rules for determining priority under any law of any relevant jurisdiction governing relative priorities of secured creditors:
(1) the Liens will rank equally and ratably with all valid, enforceable and perfected Liens, whenever granted upon any present or future Collateral, but only to the extent such Liens are permitted under this Indenture to exist and to rank equally and ratably with the Notes and the Note Guarantees; and
(2) all proceeds of the Collateral applied under the Security Documents shall be allocated and distributed as set forth in the Security Documents, subject to the Intercreditor Agreement and any Additional Intercreditor Agreement.
(e) The Collateral shall be granted within 30 days of the First Escrow Release Date. The Collateral located in Ecuador (including a mortgage over the Vessel known as the Silver Galapagos) shall be granted within 60 days of the First Escrow Release Date (or such longer period as may be agreed by the Security Agent in its sole discretion) and the mortgage over the Vessel known as the Silver Shadow (which will be repurchased as part of the unwinding of the existing sale and leaseback) shall be granted within 90 days of the First Escrow Release Date (or such longer period as may be agreed by the Security Agent in its sole discretion). The mortgage over the Vessel known as the Silver Muse shall be granted within 60 days of the Second Escrow Release Date (or such longer period as may be agreed by the Security Agent in its sole discretion).
SECTION 11.02. Authorization of Actions to Be Taken by the Security Agent Under the Security Documents. The Security Agent shall be the representative on behalf of the Holders and, subject to the Intercreditor Agreement and any Additional Intercreditor Agreement, shall act upon the written direction of the Trustee (in turn, acting on written direction of the Holders) with regard to all voting, consent and other rights granted to the Trustee and the Holders under the Security Documents. Subject to the provisions of the Security Documents (including the Intercreditor Agreement and any Additional Intercreditor Agreement), the Security Agent may, in its sole discretion and without the consent of the Holders, on behalf of the Holders, take all actions it deems necessary or appropriate in order to (a) enforce any of its rights or any of the rights of the Holders under the Security Documents and (b) receive any and all amounts payable from the Collateral in respect of the obligations of the Issuer and the Guarantors hereunder. Subject to the provisions of the Security Documents, the Security Agent shall have the power to institute and to maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any acts of impairment that may be unlawful or in violation of the Security Documents or this Indenture, and such suits and proceedings as the Security Agent (after consultation with the Trustee, where appropriate) may deem reasonably expedient to preserve or protect its interest and the interests of the Holders in the Collateral (including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of the Holders or the Security Agent). The Security Agent is hereby irrevocably authorized by each Holder of the Notes to effect any release of Liens or Collateral contemplated by Section 11.04 hereof or by the terms of the Security Documents.
Each Holder, by accepting a Note, shall be deemed (i) to have irrevocably appointed Citibank, N.A., London Branch as Security Agent and Intercreditor Agent, (ii) to have irrevocably authorized the Security Agent, the Intercreditor Agent and the Trustee to (i) perform the duties and exercise the rights, powers and discretions that are specifically given to each of them under the Intercreditor Agreement or other documents to which the Security Agent and/or the Trustee is a party, together with any other incidental rights, power and discretions and (ii) execute each document expressed to be executed by the Security Agent and/or the Trustee and/or the Intercreditor Agent on its behalf and (iii) to have accepted the terms and conditions of the Intercreditor Agreement and any Additional In-tercreditor Agreement and each Holder of the Notes will also be deemed to have authorized the Security Agent, the Intercreditor Agent and the Trustee to enter into any such Additional Intercreditor Agreement.
SECTION 11.03. Authorization of Receipt of Funds by the Security Agent Under the Security Documents. The Security Agent is authorized to receive and distribute any funds for the benefit of the Holders under the Security Documents, and to make further distributions of such funds to the Holders according to the provisions of this Indenture and the Security Documents.
SECTION 11.04. Release of the Collateral.
(a) To the extent a release is required by a Security Document, the Security Agent shall release, and the Trustee (as applicable) shall release and if so requested direct the Security Agent to release, without the need for consent of the Holders of the Notes, Liens on the Collateral securing the Notes:
(1) upon payment in full of principal of, interest and all other Obligations on the Notes issued under this Indenture or discharge or defeasance thereof;
(2) upon release of a Note Guarantee (with respect to the Liens securing such Note Guarantee granted by such Guarantor) in accordance with the applicable provisions of this Indenture;
(3) in connection with any disposition of Collateral to any Person (but excluding any transaction subject to Article Five); provided that if the Collateral is disposed of to the Parent Guarantor or a Restricted Subsidiary, the relevant Collateral becomes immediately subject to a substantially equivalent Lien in favor of the Security Agent securing the Notes; provided, further, that, in each case, such disposition is permitted by this Indenture and the Intercreditor Agreement;
(4) if the Parent Guarantor designates any Subsidiary Guarantor to be an Unrestricted Subsidiary in accordance with the applicable provisions of this Indenture, the release of the property, assets and Capital Stock of such Unrestricted Subsidiary;
(5) in connection with certain enforcement actions taken by the creditors under certain secured indebtedness of the Parent Guarantor and its Subsidiaries as provided under the Intercreditor Agreement, or otherwise in compliance with the Intercreditor Agreement;
(6) as may be permitted by Section 4.22 or Section 5.01;
(7) in order to effectuate a (i) merger, consolidation, conveyance, transfer or other business combination conducted in compliance with Section 5.01 or (ii) a reconstitution or merger for the purpose of re-flagging a vessel in compliance with Section 4.28; and
(8) upon the seizure, appropriation, nationalization or expropriation of any Collateral located or registered in Ecuador or any change in law by the government of Ecuador or any instrumentality thereof that renders it unlawful to permit a Lien against any Collateral in favor of the Security Agent, for the benefit of itself, the Trustee and the holders of the Notes.
Each of the foregoing releases shall be effected by the Security Agent without the consent of the Holders of the Notes or any action on the part of the Trustee.
(b) Any release of Collateral made in compliance with this Section 11.04 shall not be deemed to impair the Lien under the Security Documents or the Collateral thereunder in contravention of the provisions of this Indenture or the Security Documents.
(c) In the event that the Issuer or any Guarantor seeks to release Collateral, the Issuer or such Guarantor shall deliver an Officers Certificate (which the Trustee and Security Agent shall rely upon in connection with such release) to the Trustee and the Security Agent setting forth that the specified release complies with the terms of this Indenture. Upon receipt of the Officers Certificate and if so requested by the Issuer or such Guarantor, the Security Agent shall execute, deliver or acknowledge any necessary or proper instruments of termination, satisfaction or release to evidence the release of any Collateral permitted to be released pursuant to this Indenture.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Notices.
(a) Any notice or communication shall be in writing and delivered in person or mailed by first class mail or sent by facsimile transmission addressed as follows:
if to the Issuer or the Guarantors:
Silversea Cruise Finance Ltd.
c/o GTC Corporate Services Limited
Sassoon House
1378 Shirley Street & Victoria Avenue
PO Box SS-5383, Nassau, New Providence
The Bahamas
Facsimile: +1 954 763-1397
Attention: Mr. Ernesto Fara
with copies to:
Shearman & Sterling
9 Appold Street
London EC2A 2AP
United Kingdom
Facsimile: +44 (0)20 7655 5500
Attention: Mr. Trevor Ingram
if to the Trustee, Principal Paying Agent or Transfer Agent:
Citibank, N.A., London Branch
Citigroup Centre
25 Canada Square
Canary Wharf
London E14 5LB
United Kingdom
(i) For the Trustee and Security Agent
Fax: +44 20 7500 5877
Attn: Trustee
(ii) For the Principal Paying Agent
Fax: +353 1 622 4030
Attn: Agency and Trust
(iii) For the Transfer Agent
Fax: +353 1 622 4030
Attn: Agency and Trust
The Issuer, the Guarantors or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
(b) Notices regarding the Notes shall be:
(i) delivered to Holders electronically or mailed by first-class mail, postage paid; and
(ii) in the case of Definitive Registered Notes, mailed to each Holder by first-class mail at such Holders respective address as it appears on the registration books of the Registrar.
Notices given by first-class mail shall be deemed given five calendar days after mailing and notices given by publication shall be deemed given on the first date on which publication is made. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
(c) If and so long as the Notes are listed on any securities exchange instead of or in addition to the Channel Islands Stock Exchange, notices shall also be given in accordance with any applicable requirements of such alternative or additional securities exchange.
(d) If and so long as the Notes are represented by Global Notes, notice to Holders, in addition to being given in accordance with Section 12.02(b) above, shall also be given by delivery of the relevant notice to DTC for communication.
(e) Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 12.02. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer or any Guarantor to the Trustee or the Security Agent to take or refrain from taking any action under this Indenture (except in connection with the original issuance of the Original Notes on the date hereof), the Issuer or any Guarantor, as the case may be, shall furnish upon request to the Trustee or the Security Agent:
(a) an Officers Certificate in form reasonably satisfactory to the Trustee or the Security Agent stating that, in the opinion of the Officer, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form reasonably satisfactory to the Trustee or the Security Agent stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Any Officers Certificate may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless the Officer signing such certificate knows, or in the exercise of reasonable care should know, that such Opinion of Counsel with respect to the matters upon which such Officers Certificate is based are erroneous. Any Opinion of Counsel may be based and may state that it is so based, insofar as it relates to factual matters, upon certificates of public officials or an Officers Certificate stating that the information with respect to such factual matters is in the possession of the Issuer, unless the counsel signing such Opinion of Counsel knows, or in the exercise of reasonable care should know, that the Officers Certificate with respect to the matters upon which such Opinion of Counsel is based are erroneous.
SECTION 12.03. Statements Required in Certificate or Opinion. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 12.04. Rules by Trustee, Paying Agent and Registrar. The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 12.05. No Personal Liability of Directors, Officers, Employees and Stockholders. No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor, as such, shall have any liability for any obligations of the Issuer or the Guarantors under the Notes, this Indenture and the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder of Notes by accepting a Note waives and releases all such liability.
SECTION 12.06. Legal Holidays. If an Interest Payment Date or other payment date is not a Business Day, payment shall be made on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period. If a Record Date is not a Business Day, the Record Date shall not be affected.
SECTION 12.07. Governing Law. THIS INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 12.08. Jurisdiction. The Issuer and each Guarantor agree that any suit, action or proceeding against the Issuer or any Guarantor brought by any Holder or the Trustee or the Security Agent arising out of or based upon this Indenture, the Notes or the Note Guarantees may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each of them irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. Each of the Issuer and the Guarantors irrevocably waives, to the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be brought in connection with this Indenture, the Notes or the Note Guarantees, including such actions, suits or proceedings relating to securities laws of the United States of America or any state thereof, in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The Issuer and the Guarantors agree that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Issuer or any Guarantor, as the case may be, and may be enforced in any court to the jurisdiction of which the Issuer or any Guarantor, as the case may be, are subject by a suit upon such judgment; provided that service of process is effected upon the Issuer or any Guarantor, as the case may be, in the manner provided by this Indenture. Each of the Issuer and the Guarantors not resident in the United States has appointed CT Corporation System, with offices on the date hereof at 111 Eighth Avenue, New York, New York 10011, or any successor so long as such successor is resident in the United States and can act for this purpose, as its authorized agent (the Authorized Agent), upon whom process may be served in any suit, action or proceeding arising out of or based upon this Indenture, the Notes or the Note Guarantees or the transactions contemplated herein which may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, by any Holder or the Trustee, and expressly accepts the non-exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. CT Corporation System has hereby accepted such appointment and has agreed to act as said agent for service of process, and the Issuer and the Parent Guarantor
agree to take any and all action, including the filing of any and all documents that may be necessary to continue such respective appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Issuer and the Parent Guarantor. Notwithstanding the foregoing, any action involving the Issuer or the Parent Guarantor arising out of or based upon this Indenture, the Notes or the Note Guarantees may be instituted by any Holder or the Trustee or the Security Agent in any other court of competent jurisdiction. The Issuer expressly consents to the jurisdiction of any such court in respect of any such action and waives any other requirements of or objections to personal jurisdiction with respect thereto and waives any right to trial by jury.
SECTION 12.09. No Recourse Against Others. A director, officer, employee, incorporator, member or shareholder, as such, of the Issuer or any Guarantor shall not have any liability for any obligations of the Issuer or any Guarantor under this Indenture, the Notes or any Note Guarantee or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Notes. Such waiver and release may not be effective to waive liabilities under the U.S. federal securities laws.
SECTION 12.10. Successors. All agreements of the Issuer and any Guarantor in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successors.
SECTION 12.11. Counterparts. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture. The exchange of copies of this Indenture and of signature pages by facsimile or other electronic transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto. Signatures of the parties hereto transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for all purposes.
SECTION 12.12. Table of Contents, Cross-Reference Sheet and Headings. The table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
SECTION 12.13. Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 12.14. Currency Indemnity. Any payment on account of an amount that is payable in U.S. dollars (the Required Currency) which is made to or for the account of any holder or the Trustee in lawful currency of any other jurisdiction (the Judgment Currency), whether as a result of any judgment or order or the enforcement thereof or the liquidation of the Issuer or any Guarantor, shall constitute a discharge of the Issuer or the Guar-antors obligation under this Indenture and the Notes or Note Guarantee, as the case may be, only to the extent of the amount of the Required Currency with such holder or the Trustee, as the case may be, could purchase in the London foreign exchange markets with the amount of the Judgment Currency in accordance with normal banking procedures at the rate of exchange prevailing on the first Business Day following receipt of the payment in the Judgment Currency. If the amount of the Required Currency that could be so purchased is less than the amount of the Required Currency originally due to such holder or the Trustee, as the case may be, the Issuer and the Guarantors shall indemnify and hold harmless the holder or the Trustee, as the case may be, from and against all loss or damage arising out of, or as a result of, such deficiency. This indemnity shall constitute an obligation separate and independent from the other obligations contained in this Indenture or the Notes, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by any holder or the Trustee from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due hereunder or under any judgment or order.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.
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ISSUER: | ||
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SILVERSEA CRUISE FINANCE LTD. | ||
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By: |
/s/ Roberto Martinoli | |
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Name: |
Roberto Martinoli |
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Title: |
Director |
[Signature Page to Indenture]
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CITIBANK, N.A., LONDON BRANCH, | |||
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as Trustee, Principal Paying Agent, Transfer Agent | |||
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By: |
/s/ Beth Kuhn |
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Name: |
Beth Kuhn | |
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Title: |
Vice President | |
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CITIGROUP GLOBAL MARKETS DEUTSCHLAND AG, | |||
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as Registrar | |||
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By: |
/s/ Werner Klotz |
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Name: |
Werner Klotz | |
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Title: |
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By: |
/s/ Gabriele Fisch |
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Name: |
Gabriele Fisch | |
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Title: |
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[Signature Page to Indenture]
Schedule I
SUBSIDIARY GUARANTORS
First Escrow Release Subsidiary Guarantors
Entity |
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Jurisdiction |
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Silversea Cruises Ltd. |
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The Bahamas | |
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Silver Cloud Shipping Co. Ltd. |
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The Bahamas | |
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Silver Wind Shipping Ltd. |
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The Bahamas | |
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Silver Shadow Shipping Co. Ltd. |
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The Bahamas | |
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Silver Spirit Shipping Co. Ltd. |
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The Bahamas | |
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Silversea New Build Six Ltd. |
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The Bahamas | |
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SG Expeditions Cyprus Limited |
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Cyprus | |
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Canodros C.L. |
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Ecuador | |
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SG Expeditions SAGL |
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Switzerland | |
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SG Cruises GmbH |
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Switzerland | |
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Silversea Cruises (Europe) Limited |
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United Kingdom | |
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Silversea Cruises (UK) LimitedUnited Kingdom |
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Schedule II |
SECURITY DOCUMENTS
Within 30 days of the First Escrow Release Date (or (i) with respect to the Silver Galapagos only, within 60 days of the First Escrow Release Date and (ii) with respect to the Silver Shadow only, within 90 days of the First Escrow Release Date), the Security Agent shall have received, in form and substance as shall be reasonably satisfactory to the Security Agent and its counsel, (a) with respect to each Collateral Vessel, a certified copy of all flag, classification, trading and custody transfer certificates showing such Collateral Vessel to be in class without recommendation, condition or qualification; (b) evidence that (i) the title to each of the Collateral Vessels that is owned by a Guarantor is owned by the applicable Guarantor free and clear of all liens, encumbrances, claims, rights of detention, mortgages, security interests and defects and imperfections of title, except for Permitted Liens, and (ii) each of the Collateral Vessels has been duly registered in the name of its owner under the laws and regulations and flag of the nation of its registration; and (c) a certified copy of all current insurance policies in respect of each Collateral Vessel in form and substance reasonably satisfactory to the Security Agent.
In addition, within 30 days of the First Escrow Release Date, the Security Agent shall have received, in form and substance as shall be reasonably satisfactory to the Security Agent and its counsel, the following duly executed additional security documents:
1. Bahamian law debenture encompassing all assets by and among Silversea Cruises Ltd. and the Security Agent;
2. Bahamian law debenture encompassing all assets by and among the Parent Guarantor and the Security Agent;
3. Bahamian law debenture encompassing all assets by and among the Issuer and the Security Agent;
4. Bahamian law debenture encompassing all assets by and among Silver Cloud Shipping Co. Ltd. and the Security Agent;
5. Bahamian law debenture encompassing all assets by and among Silver Wind Shipping Ltd. and the Security Agent;
6. Bahamian law debenture encompassing all assets by and among Silver Shadow Shipping Co. Ltd and the Security Agent;
7. Bahamian law debenture encompassing all assets by and among Silver Spirit Shipping Co. Ltd. and the Security Agent;
8. Bahamian law debenture encompassing all assets by and among Silversea New Build Six Ltd. and the Security Agent;
9. Bahamian law share pledge over the shares of the Issuer by and among the Parent Guarantor and the Security Agent;
10. Bahamian law share pledge over the shares of Silversea Cruises Ltd. by and among the Issuer and the Security Agent;
11. Bahamian law share pledge over the shares of Silver Cloud Shipping Co. Ltd. by and among the Issuer and the Security Agent;
12. Bahamian law share pledge over the shares of Silver Wind Shipping Ltd. by and among the Issuer and the Security Agent;
13. Bahamian law share pledge over the shares of Silver Shadow Shipping Co. Ltd. by and among the Issuer and the Security Agent;
14. Bahamian law share pledge over the shares of Silver Spirit Shipping Co. Ltd. by and among the Issuer and the Security Agent;
15. Bahamian law share pledge over the shares of Silversea New Build Six Ltd. by and among the Issuer and the Security Agent;
16. Cypriot share pledge over the shares of SG Expeditions Cyprus Ltd. by and among Silversea Cruises Ltd. and the Security Agent;
17. English law all-asset debenture, including a share pledge over the shares in Silversea Cruises (UK) Ltd. by and among Silversea Cruises (UK) Limited, Silversea Cruises (Europe) Limited and the Security Agent;
18. English law share pledge over the shares of Silversea Cruises (Europe) Limited by and among Sil-versea Cruises Ltd. and the Security Agent;
19. English law general assignment agreement and deed of covenants, including an assignment of insurances in respect of Collateral Vessels, intercompany receivables and relevant contracts by and among Silversea Cruises Ltd, Silver Cloud Shipping Co. Ltd., Silver Wind Shipping Ltd., Silver Shadow Shipping Co. Ltd., Canodros C.L., Silver Spirit Shipping Co. Ltd., the Parent Guarantor, the Issuer, SG Expeditions Cyprus Limited, SG Expeditions SAGL, Silversea Cruises (Europe) Limited, Silversea Cruises (UK) Limited, Silversea New Build Six Ltd., SG Cruises GmbH and the Security Agent;
20. English law bank account charge agreement by and among the Issuer and the Security Agent;
21. English law bank account charge agreement by and among Silversea Cruises Ltd. and the Security Agent;
22. New York law security agreement over bank accounts by and among Silversea Cruises Ltd. and the Security Agent;
23. Swiss quota pledge over the shares in SG Expeditions SAGL by and among SG Expeditions Cyprus Ltd. and the Security Agent;
24. Swiss law Charge over bank accounts claims in Switzerland by and among SG Cruises GmbH and the Security Agent;
25. Swiss law quota pledge over the shares in SG Cruises GmbH by and among SG Expeditions SAGL and the Security Agent; and
26. Swiss law Charge over bank accounts claims in Switzerland by and among SG Expeditions SAGL and the Security Agent.
Within 60 days of the First Escrow Release Date, the Security Agent shall have received, in form and substance as shall be reasonably satisfactory to the Security Agent and its counsel, a power of attorney pertaining to all the issued shares of Canodros C.L..
Vessel Mortgages
(A) Within 30 days of the First Escrow Release Date (or, with respect to the Silver Shadow only, within 90 days of the First Escrow Release Date), the Security Agent shall have received, in form and substance as shall be reasonably satisfactory to the Security Agent and its counsel, with respect to each Collateral Vessel registered under the laws and regulations and flag of the Commonwealth of The Bahamas, (x) a duly executed original first priority ship mortgage granted by the relevant Guarantor in favor of the Security Agent and deed of covenant collateral thereto, together with evidence that such mortgage has been duly recorded in the applicable shipping registry of the Commonwealth of The Bahamas and that all taxes and fees payable in respect of such Collateral Vessel and mortgage have been paid in full; (y) a duly executed first priority assignment of, amongst other things, earnings, insurances and any requisition compensation granted by the relevant Guarantor in favor of the Security Agent; and (z) duly executed and, where necessary, notarized notices of assignment of the insurances and requisition compensation pertaining to such Collateral Vessel.
(B) Within 60 days of the First Escrow Release Date the Security Agent shall have received, in form and substance as shall be reasonably satisfactory to the Security Agent and its counsel, with respect to the Silver Galapagos, (x) a duly executed original first priority ship mortgage granted by Canodros C.L. in favor of the Security Agent and deed of covenant collateral thereto, together with evidence that such mortgage has been duly recorded in the applicable shipping registry of the Republic of Ecuador and that all taxes and fees payable in respect of such Collateral Vessel and mortgage have been paid in full; (y) a duly executed first priority assignment of, amongst other things, earnings, insurances and any requisition compensation granted by Canodros C.L. in favor of the Security Agent; and (z) duly executed and, where necessary, notarized notices of assignment of the insurances and requisition compensation pertaining to such Collateral Vessel.
(C) Within 60 days of the Second Escrow Release Date, the Security Agent shall have received, in form and substance as shall be reasonably satisfactory to the Security Agent and its counsel, with respect to the Silver Muse, (x) a duly executed original first priority ship mortgage granted by Silversea New Build Six Ltd. in favor of the Security Agent and deed of covenant collateral thereto, together with evidence that such mortgage has been duly recorded in the applicable shipping registry of the Commonwealth of The Bahamas and that all taxes and fees payable in respect of such Collateral Vessel and mortgage have been paid in full; (y) a duly executed first priority assignment of, amongst other things, earnings, insurances and any requisition compensation granted by Silversea New Build Six Ltd. in favor of the Security Agent; and (z) duly executed and, where necessary, notarized notices of assignment of the insurances and requisition compensation pertaining to such Collateral Vessel.
Post-Closing Legal Opinions
Concurrently with the receipt of the applicable security documents listed above, the Security Agent shall have received opinions, addressed to the Security Agent, the Trustee and the Initial Purchasers, of (i) Higgs & Johnson, counsel for the Initial Purchasers as to matters of Bahamian law, (ii) Polakis Sarris & Co LLC, counsel for the Issuer and the Guarantors as to matters of Cypriot law, (iii) Walder Wyss Ltd., counsel for the Issuer and the Guarantors as to matters of Swiss law, (vi) Allen & Overy LLP, counsel for the Initial Purchasers as to matters of English law, and (v) Gómez-Lince & Cia, counsel for the Initial Purchasers as to matters of Ecuadorian law, in each case, with respect to such matters as the Security Agent and the Trustee may reasonably request and in a form reasonably satisfactory to the Security Agent and the Trustee.
Schedule III
AGREED SECURITY PRINCIPLES
1. AGREED SECURITY PRINCIPLES
The guarantees and security to be provided under and in connection with this Indenture will be given in accordance with the security and guarantee principles set out in this Schedule III (the Agreed Security Principles).
2. GENERAL PRINCIPLES
2.1 The Agreed Security Principles embody a recognition by all parties that there may be certain legal and practical difficulties in obtaining effective guarantees and security from the Parent Guarantor and its Subsidiaries (collectively, the Group) in certain jurisdictions. In particular:
(a) general statutory limitations, capital maintenance, financial assistance, corporate benefit, fraudulent preference, thin capitalisation rules, retention of title claims, regulatory restrictions and similar principles may limit the ability of a member of the Group to provide a guarantee or security or may require that the guarantee and/or security be limited by an amount or otherwise; provided that the Group will use reasonable efforts to assist in demonstrating that adequate corporate benefit accrues to the Group and each relevant Guarantor, it being acknowledged that reasonable efforts shall not require the payment by the Parent Guarantor or the relevant company of any monetary consent or waiver excluding any reasonable legal fees that may be payable. If any such limit applies, the guarantees and security provided will be limited to the maximum amount which the relevant member of the Group may provide having regard to applicable law;
(b) a factor in determining whether or not security shall be taken is the applicable cost which shall not be disproportionate to the benefit to the Holders (or any other beneficiary of the security) of obtaining such security. For these purposes, cost includes, but is not limited to, income or corporate tax cost, registration taxes payable on the creation or enforcement or for the continuance of any security, notary costs, stamp duties, out-of-pocket expenses and other fees and expenses directly incurred by the relevant grantor of security or any of its direct or indirect owners, subsidiaries or Affiliates;
(c) except in the case of the Guarantors, unless each consent required bylaw, statute, the terms of any applicable contract, instrument or constitutional document or otherwise from the minority shareholders in, or any relevant corporate body of, any member of the Group which is not wholly owned (directly or indirectly) by another member of the Group is obtained, such member shall not be required to grant guarantees and security; provided that the relevant company and the Parent Guarantor have used reasonable efforts to obtain such consent, it being acknowledged that reasonable efforts shall not require the payment by the Parent Guarantor or the relevant company of any monetary consent or waiver excluding any reasonable legal fees that may be payable;
(d) guarantees should not be granted and security shall not be created or perfected to the extent that it would result in a risk to the directors or officers of the relevant grantor of such guarantee and security being in contravention of any statutory duty in such capacity or their fiduciary duties and/or which could reasonably be expected to result in personal, civil or criminal liability on the part of any such director or officer; provided that the relevant member of the Group shall use reasonable efforts to overcome any such obstacle, it being acknowledged that reasonable efforts shall not require the payment by the Parent Guarantor or the relevant company of any monetary consent or waiver;
(e) any assets (other than, for the avoidance of doubt, any Collateral Vessels) subject to third party arrangements (including shareholder agreements or joint venture agreements) which are permitted by the terms of the Indenture and which would prevent or prohibit those assets from being subject to legal, valid, binding and enforceable security will be excluded from the security created by any relevant security document; provided that the relevant member of the Group has used reasonable efforts to obtain any necessary consent or waiver if the asset is material, it being acknowledged that reasonable efforts shall not require the payment by the Parent Guarantor or the relevant company of any monetary consent or waiver excluding any reasonable legal fees that may be payable;
(f) where a class of assets to be secured includes material and immaterial assets, if the cost of granting security over the immaterial assets is disproportionate to the benefit of such security, security will be granted over the material assets only;
(g) the giving of a guarantee, the granting of security or the perfection of the security granted will not be required if:
(i) it has or is reasonably likely to have a material adverse effect on the ability of the relevant member of the Group to conduct its operations and business in the ordinary course as otherwise permitted by the Indenture; or
(ii) it has or is reasonably likely to have a material adverse effect on the tax arrangements of the Group or any member of the Group,
provided that, in each case, the relevant member of the Group shall use reasonable efforts to overcome such obstacle. The secured and guaranteed obligations will be limited where necessary to prevent any material additional tax liability of any member of the Group;
(h) in the case of any security granted by any member of the Group, no fixed security will be given over inventory, receivables (other than receivables in respect of intra-group loans, hedging and insurance (excluding for these purposes any insurance policy in relation to a Collateral Vessel which are addressed in paragraph 8.2 of these Agreed Security Principles below)) or non-material intellectual property rights which instead in each case shall be subject to floating security to the extent applicable under the laws of the jurisdiction governing the relevant security agreement. Nothing in this paragraph will restrict any provision permitting the crystallisation of any floating charge in certain circumstances as set out in the Security Documents; and
(i) other than in respect of (i) the registration of the mortgages in respect of the Collateral Vessels with the relevant ship registry and (ii) any other notifications expressly contemplated in these Agreed Security Principles, no perfection action will be required in jurisdictions in which Guarantors are not located.
3. GUARANTEES AND SECURITY
Each guarantee will be an upstream, cross-stream and downstream guarantee and each guarantee and security will be for all liabilities of the relevant members of the Group under the Notes and the Indenture, in accordance with, and subject to, the requirements of the Agreed Security Principles in each relevant jurisdiction.
4. TERMS OF SECURITY DOCUMENTS
4.1 Security will be first ranking, to the extent possible.
4.2 Security shall (to the extent legally possible, subject to the general principles above) be created in favor of the Security Agent, the Trustee and the Holders or the Security Agent on behalf of or as trustee for the Trustee and the Holders (as considered appropriate by counsel to the Security Agent), to secure all of the
obligations of the party giving the relevant security as well as all liabilities under the Indenture and the Notes (to the extent permitted by local law) and provided that parallel debt provisions may be used where necessary.
4.3 The security documents should only operate to create security rather than to impose new commercial obligations. Accordingly, representations and undertakings (such as in respect of insurance, maintenance of assets, information or the payment of costs) shall be strictly limited to those necessary for the creation and/or perfection of the security, will not unreasonably interfere with the normal running of the business and shall not be included to the extent the subject matter thereof is the same as a corresponding undertaking in the Agreement and shall not operate so as to prevent transactions which are otherwise permitted under the Agreement or to require additional consents or authorizations or to impose commercial obligations.
4.4 If a member of a Group grants security over any asset it shall, subject to the terms of the Indenture and the Notes, be free to deal with that asset in the ordinary course of its business until a Declared Default (as defined below) has occurred.
4.5 The following principles will be reflected in the terms of any security taken as part of this transaction:
(a) security will not be enforceable in respect of the Notes until an Event of Default has occurred in respect of which the Notes are being accelerated (a Declared Default);
(b) information, such as lists of assets, will be provided if, in the opinion of counsel to the Security Agent, these are required by local law to be provided to perfect or register the security or to ensure the security can be enforced and, unless in the opinion of counsel to the Security Agent required to be provided by local law more frequently, be provided annually or, following an Event of Default which is continuing, on the Security Agents reasonable request; and
(c) each of the Trustee, the Security Agent and the Holders should only be able to exercise any power of attorney granted to it under the security documents: (i) following a Declared Default; or (ii) if the relevant chargor has failed to perform an obligation under a security document and such failure has not been remedied within ten (10) Business Days of the Security Agent requiring it to be so remedied.
5. BANK ACCOUNTS
5.1 Subject to paragraph 5.3 below, if required by local law to perfect the security, notice of the security will be served on the account bank within ten (10) Business Days of the security being granted and the relevant member of the Group shall use its reasonable efforts to obtain an acknowledgement of that notice within twenty (20) Business Days of service. If the relevant member of the Group has used its reasonable efforts but has not been able to obtain acknowledgement its obligation to obtain acknowledgement shall cease on the expiry of that twenty (20) Business Day period. Irrespective of whether notice of the security is required for perfection, if the service of notice would prevent the relevant member of the Group from using a bank account in the ordinary course of its business no notice of security shall be served until a Declared Default has occurred. There will be no restriction on the closure of any bank accounts which are no longer required by the Group.
5.2 Any security over bank accounts shall be subject to any prior security interests in favor of the account bank which are created either by law or in the standard terms and conditions of the account bank. The notice of security may request these are waived or subordinated by the account bank but the Guarantor shall not be required to change its banking arrangements if these security interests are not waived or subordinated or only partially waived or subordinated.
5.3 The Security Agent shall be entitled, at any time, to notify the relevant account bank of the security interest in a bank account where such security is granted under a Security Document governed by Swiss law, if and
to the extent the Security Agent deems such notification reasonably necessary for protecting and pursuing the Security Agents rights and the Liens created under such Security Document.
6. REAL ESTATE
6.1 No fixed security will be given over leasehold interests of less than ten (10) years unless there is an option to acquire the freehold and where the freehold will have a value in excess of $1,000,000 (or its equivalent
in other currencies), in which case security will be given at the time of the exercise of that option.
6.2 There will be no obligation to investigate title, provide surveys or other insurance or environmental due diligence.
6.3 There will be no obligation to obtain any landlords consent required to grant security over real estate.
7. VESSEL MORTGAGES
7.1 Each mortgage in respect of a Collateral Vessel must be accompanied by a deed of covenants collateral thereto and be duly recorded in the relevant ship registry of a Permitted Jurisdiction as soon as possible following the Relevant Date (as defined below) but no later than two (2) Business Days thereafter and all related taxes and fees must be paid at least one (1) Business Day prior to the Relevant Date or such other period as requested by the mortgagee.
7.2 In addition to the mortgage and deed of covenants over a Collateral Vessel, the vessel security shall include: (i) an assignment of insurances, earnings and requisition compensation, (ii) a deed of charge over the shares in the owner and its immediate holding company, (iii) a deed of assignment and subordination entered into by the bareboat charterer, (iv) for those Collateral Vessels with a manager, a managers undertaking letter addressed to the mortgagee (in a form typical for the Collateral Vessel which shall include an assignment of the managers interest in any insurances and a subordination of any claims of the manager against the owner following a Declared Default) and (v) a letter of instruction to the classification society (in a form typical for the Collateral Vessel).
7.3 The earnings of the Collateral Vessels shall be assigned under a general assignment and if a ship is operated under a time or bareboat charterparty or capacity purchase agreement or similar agreement (excluding any space allotment agreement or time charter of one hundred and twenty (120) days or less), the general assignment shall include an assignment of the rights of the owner, or charterparty as the case may be, under that charterparty. The charterer of a ship may be instructed to pay the hire due to the Guarantor directly to the Security Agent following receipt of a notice from the Security Agent after a Declared Default.
7.4 In this paragraph 7:
Relevant Date means:
(a) in respect of the mortgages of the Collateral Vessels known as Silver Cloud, Silver Wind, and Silver Spirit, the Issue Date;
(b) in respect of the mortgage of the Collateral Vessel known as Silver Galapagos, twenty-five (25) Business Days after the Issue Date;
(c) in respect of a mortgage in respect of the Silver Shadow, the date that the Silver Shadow is acquired by a Group Member; and
(d) in respect of any other mortgage, the delivery date of the Vessel or the date on which the Vessel is re-flagged (as applicable).
8. INSURANCE POLICIES
8.1 The insurance policies over a Collateral Vessel will cover marine risks to its hull and machinery, war risks and liability risks on an agreed value basis for an amount which is greater from time to time of (A) the relevant Vessels full market value and (B) an amount which (when aggregated with the amounts for which all other Collateral Vessels which are similarly insured) equals one hundred and twenty per cent (120%) of the aggregate amount of the Credit Facility Commitments, the Bond And Other Secured Debt Liabilities and all other drawn amounts under any other Credit Facility Documents and Bond And Other Secured Debt Documents (in each case as such term is defined in the Intercreditor Agreement). These policies shall be assigned and the insurers instructed to pay out claims proceeds into a blocked account (with the relevant withdrawal permissions) held in the name of the relevant debtor situated in England or, with the prior written consent of the Security Agent, to the debtor. Each Collateral Vessel shall remain entered in a protection and indemnity association in both protection and indemnity classes, or remain otherwise insured against protection and indemnity risk and liabilities.
8.2 In relation to any insurance policy other than those relating to a Collateral Vessel:
(a) if required by local law to perfect the security or to exclude the possibility that the debtor pays to the relevant member of the Group with discharging effect, notice of the security will be served on the insurance provider within ten (10) Business Days of the security being granted and the relevant member of the Group shall use its reasonable efforts to obtain an acknowledgement of that notice within twenty (20) Business Days of service. If the relevant member of the Group has used its reasonable efforts but has not been able to obtain acknowledgement its obligation to obtain acknowledgement shall cease on the expiry of that twenty (20) Business Day period; and
(b) no loss payee or other endorsement shall be made on the insurance policy.
8.3 In relation to any insurance policy relating to a Vessel:
(a) notice of the security will be served on the insurance provider within ten (10) Business Days of the security being granted;
(b) the relevant member of the Group shall use its reasonable efforts to obtain a loss payee or other endorsement or, in the case of entries in a protection and indemnity association, a note of the as-signees interest made on the insurance policy; and
(c) the relevant member of the Group shall use its reasonable efforts to obtain a letter of undertaking issued to the assignee by the broker(s) through whom the relevant policy is placed (or, in the case of entries in protection and indemnity or war risks associations, by their managers).
If the relevant member of the Group has used its reasonable efforts to ensure the obligation in either (b) or (c) of this paragraph 8.3 for a period of six (6) weeks from the serving of the notice as required by (a) above but its obligation remains unfulfilled, such obligation to obtain the loss payee endorsement, note of assignment or letter of undertaking (as applicable) shall cease on the expiry of six (6) week period.
9. INTELLECTUAL PROPERTY
9.1 No security shall be granted over any intellectual property which cannot be secured under the terms of the relevant licensing agreement. No notice shall be prepared or given to any third party from whom intellectual property is licensed until a Declared Default has occurred.
9.2 The security documents will not provide for registration of the security over intellectual property outside of the jurisdiction of incorporation of the relevant obligor unless otherwise agreed.
10. TRADE RECEIVABLES
10.1 Subject to paragraph 10.2 below, no notice of security may be prepared or served until the occurrence of a Declared Default.
10.2 The Security Agent shall be entitled, at any time, to notify the relevant debtors of the security interest in the trade receivables where such security is granted under a Security Document governed by Swiss law, if and to the extent the Security Agent deems such notification reasonably necessary for protecting and pursuing the Security Agents rights and the security interest created under such Security Document.
10.3 No security will be granted over any trade receivables which cannot be secured under the terms of the relevant contract.
11. SHARES AND PARTNERSHIP INTERESTS
11.1 Until a Declared Default has occurred, the securing person will be permitted to retain dividends and other payments to which they may be entitled as shareholders or partners and to exercise voting rights to any shares or partnership interests pledged by it in a manner which does not adversely affect the validity or enforceability of the security or cause an Event of Default to occur and the company whose shares or partnership interests have been pledged will, subject to the terms of the Indenture, be permitted to pay dividends.
11.2 Unless the restriction is required or advisable by law, the constitutional documents of the company whose shares have been charged will be amended to remove any restriction on the transfer or the registration of the transfer of the shares on enforcement of the security granted over them and/or pre-emption rights to the extent these would materially and adversely affect the security interests created under the Security Documents.
13. FIXED DOCUMENTS
13.1 If a Group Member grants a security interest over its fixed assets it shall be free to deal with those assets, subject to the terms of the Indenture, in the course of its business until a Declared Default.
13.1 No notice whether to third parties or by attaching a notice to the fixed assets shall be prepared or given until a Declared Default.
14. INTERCOMPANY RECEIVABLES
If required by local law to perfect the security, notice of the security will be served on the relevant lender within ten (10) Business Days of the security being granted and the relevant member of the Group shall use its best endeavors to obtain an acknowledgement of that notice with twenty (20) Business Days of service. If the relevant member of the Group has used its reasonable efforts but has not been able to obtain acknowledgement its obligation to obtain acknowledgement shall cease on the expiry of that twenty (20) Business Day period. If the service of notice would prevent the member of the Group from dealing with an intercompany receivable in the course of its business no notice of security shall be served until the occurrence of a Declared Default.
EXHIBIT A
[FORM OF FACE OF NOTE]
SILVERSEA CRUISE FINANCE LTD.
[If Regulation S Global Note CUSIP Number [·]1 / ISIN [·]2]
[If Restricted Global Note CUSIP Number [·]3 / ISIN [·]4]
No. [·]
[Include if Global Note UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF DTC OR A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE U.S. SECURITIES ACT) OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A QUALIFIED INSTITUTIONAL BUYER(AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION PURSUANT TO RULE 144A OR RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, (2) AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED NOTES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE RESALE RESTRICTION TERMINATION DATE) WHICH IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST
1 Issue Date Regulation S CUSIP: P9000L AA5
2 Issue Date Regulation S ISIN: USP9000LAA54
3 Issue Date Rule 144A CUSIP: 82845L AA8
4 Issue Date Rule 144A ISIN: US82845LAA89
DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE)] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE DATE WHEN THE NOTES WERE FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S AND THE DATE OF THE COMPLETION OF THE DISTRIBUTION] ONLY (A) TO THE ISSUER OR THE PARENT GUARANTOR, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYERAS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUERS AND THE TRUSTEES RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THE HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES THAT IT SHALL NOT TRANSFER THE SECURITIES IN AN AMOUNT LESS THAN $2,000.
7.250% SENIOR SECURED NOTE DUE 2025
Silversea Cruise Finance Ltd., a limited liability company incorporated under the laws of the Commonwealth of The Bahamas, for value received, promises to pay to [·] or registered assigns the principal sum of $[·] (as such amount may be increased or decreased as indicated in Schedule A (Schedule of Principal Amount in the Global Note) of this Note) on February 1, 2025.
From [·], 20[·] or from the most recent interest payment date to which interest has been paid or provided for, cash interest on this Note will accrue at 7.250%, payable semi-annually on February 1 and August 1 of each year, beginning on [·], to the Person in whose name this Note (or any predecessor Note) is registered at the close of business on the preceding January 15 or July 15, as the case may be.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature of an authorized signatory, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof and to the provisions of the Indenture, which provisions shall for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, Silversea Cruise Finance Ltd. has caused this Note to be signed manually or by facsimile by its duly authorized signatory.
Dated: [·], 20[·]
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CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the Indenture.
CITIBANK, N.A., LONDON BRANCH,
as Trustee
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[FORM OF REVERSE SIDE OF NOTE]
7.250% Senior Secured Note due 2025
1. Interest
Silversea Cruise Finance Ltd., a limited liability company incorporated under the laws of the Commonwealth of The Bahamas (together with it successors and assigns under the Indenture, the Issuer), for value received, promises to pay interest on the principal amount of this Note from [·], 20[·] at the rate per annum shown above. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The Issuer shall pay interest on overdue principal at the interest rate borne by the Notes compounded semi-annually, and it shall pay interest on other overdue amounts at the same rate to the extent lawful. Any interest paid on this Note shall be increased to the extent necessary to pay Additional Amounts as set forth in this Note.
2. Additional Amounts
(a) All payments made by or on behalf of the Issuer or any of the Guarantors under or with respect to the Notes or any Note Guarantee will be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes unless the withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a Tax Jurisdiction) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, will pay such additional amounts (the Additional Amounts) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts will be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant Holder, if the relevant Holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, or having or having had a permanent establishment in, the relevant Tax Jurisdiction or having any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the Holder or beneficial owner of the Notes, following the Issuers reasonable written request addressed to the Holder at least 30 days before any such withholding or deduction would be imposed, to comply
with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the Holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a Holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the Holder if such Holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such Holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the Code) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above.
In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note Guarantee or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officers Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officers Certificate must also set forth any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders on the relevant payment date. The Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officers Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer or the relevant Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuer or a Guarantor, as the case may be, or if, notwithstanding such entitys efforts
to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any termination, defeasance or discharge of the Indenture, any transfer by a Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
3. Method of Payment
The Issuer shall pay interest on this Note (except defaulted interest) to the Holder at the close of business on the Record Date for the next Interest Payment Date even if this Note is cancelled after the Record Date and on or before the Interest Payment Date. The Issuer shall pay principal and interest in dollars in immediately available funds that at the time of payment is legal tender for payment of public and private debts; provided that payment of interest may be made at the option of the Issuer by check mailed to the Holder.
The amount of payments in respect of interest on each Interest Payment Date shall correspond to the aggregate principal amount of Notes represented by this Note, as established by the Registrar at the close of business on the relevant Record Date. Payments of principal shall be made upon surrender of this Note to the Paying Agent.
4. Paying Agent and Registrar
Initially, Citibank, N.A., London Branch or one of its affiliates will act as Principal Paying Agent and Citigroup Global Markets Deutschland AG will act as Registrar. The Issuer or any of its Affiliates may act as Paying Agent, Registrar or co-Registrar.
5. Indenture
The Issuer issued this Note under an indenture dated as of January 30, 2017 (as amended, supplemented or otherwise modified from time to time, the Indenture), among, inter alios, the Issuer and Citibank, N.A., London Branch, as trustee (the Trustee) and as Security Agent. The terms of this Note include those stated in the Indenture. Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
The Indenture imposes certain limitations on the Issuer, the Guarantors and their Affiliates, including, without limitation, limitations on the incurrence of indebtedness and issuance of stock, the payment of dividends and other payment restrictions affecting the Parent Guarantor and its Restricted Subsidiaries, the sale of assets, transactions with and among Affiliates of the Parent Guarantor and the Restricted Subsidiaries, Change of Control and Liens.
6. Optional Redemption
(a) At any time prior to February 1, 2020, the Issuer may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture, upon giving not less than 10 nor more than 60 days notice, at a redemption price equal to 107.250% of the principal amount of the Notes redeemed, plus accrued and unpaid interest and Additional Amounts, if any, to the date of redemption (subject to the rights of Holders
of the Notes on the relevant Record Date to receive interest on the relevant Interest Payment Date), with the net cash proceeds of an Equity Offering; provided that: (1) at least 65% of the aggregate principal amount of the Notes originally issued under the Indenture (excluding Notes held by the Parent Guarantor and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and (2) the redemption occurs within 120 days of the date of the closing of such Equity Offering.
(b) At any time prior to February 1, 2020, the Issuer may on any one or more occasions redeem all or a part of the Notes, upon giving not less than 10 nor more than 60 days notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the Applicable Premium (as calculated by the Issuer) as of, and accrued and unpaid interest and Additional Amounts, if any, to, the date of redemption, subject to the rights of Holders of the Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date.
Applicable Premium means, with respect to any Note on any redemption date, the greater of: (1) 1.0% of the principal amount of the Note; and (2) the excess of: (a) the present value at such redemption date of (i) the redemption price of the Note at February 1, 2020, (such redemption price being set forth in the table appearing below in paragraph (d)) plus (ii) all required interest payments due on the Note through February 1, 2020 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over (b) the principal amount of the Note. Calculation of the Applicable Premium is not an obligation or duty of the Trustee or the Registrar or any Paying Agent under the Indenture.
Treasury Rate means, as of any redemption date, the weekly average rounded to the nearest 1/100th of a percentage point (for the most recently completed week for which such information is available as of the date that is two Business Days prior to the redemption date) of the yield to maturity of United States Treasury Securities with a constant maturity (as compiled and published in Federal Reserve Statistical Release H.15 with respect to each applicable day during such week or, if such Statistical Release is no longer published, any publicly available source of similar market data) most nearly equal to the period from the redemption date to February 1, 2020; provided, however, that if the period from the redemption date to February 1, 2020 is not equal to the constant maturity of a United States Treasury Security for which such a yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury Securities for which such yields are given, except that if the period from the redemption date to February 1, 2020 is less than one year, the weekly average yield on actually traded United States Treasury Securities adjusted to a constant maturity of one year shall be used.
(c) Except as provided in paragraphs (a) and (b) above and except pursuant to paragraph 7 of this Note, the Notes are not redeemable at the Issuers option prior to February 1, 2020.
(d) On or after February 1, 2020, the Issuer may on any one or more occasions redeem all or a part of the Notes, upon not less than 10 nor more than 60 days notice, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest and Additional Amounts, if any, on the Notes redeemed, to the applicable date of redemption, if redeemed during the twelve-month period beginning on February 1 of the years indicated below, subject to the rights of Holders of the Notes on the relevant Record Date to receive interest on the relevant Interest Payment Date:
Year |
Redemption Price |
|
|
2020 |
105.438% |
2021 |
103.625% |
2022 |
101.813% |
2023 and thereafter |
100.000% |
Unless the Issuer defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.
Any redemption and notice may, in the Issuers discretion, be subject to the satisfaction of one or more conditions precedent.
7. Redemption for Changes in Taxes
The Issuer may redeem the Notes, in whole but not in part, at its discretion at any time upon giving not less than 10 nor more than 60 days prior written notice to the Holders of the Notes (which notice shall be irrevocable and given in accordance with the procedures set forth under Section 3.04 of the Indenture), at a Redemption Price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed by the Issuer for redemption (a Tax Redemption Date) and all Additional Amounts (if any) then due or which will become due on the Tax Redemption Date as a result of the redemption or otherwise (subject to the right of Holders on the relevant Record Date to receive interest due on the relevant Interest Payment Date and Additional Amounts (if any) in respect thereof), if on the next date on which any amount would be payable in respect of the Notes or Note Guarantee, the Issuer or any Guarantor is or would be required to pay Additional Amounts (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Issuer or another Guarantor without the obligation to pay Additional Amounts), and the Issuer or the relevant Guarantor cannot avoid any such payment obligation by taking reasonable measures available (including, for the avoidance of doubt, appointment of a new Paying Agent but excluding the reincorporation or reorganization of the Issuer or any Guarantor), and the requirement arises as a result of: (1) any change in, or amendment to, the laws (or any regulations or rulings promulgated thereunder) of the relevant Tax Jurisdiction which change or amendment is announced and becomes effective after the date of the Offering Memorandum (or if the applicable Tax Jurisdiction became a Tax Jurisdiction on a date after the date of the Offering Memorandum, after such later date); or (2) any change in, or amendment to, the official application, administration or interpretation of such laws, regulations or rulings (including by virtue of a holding, judgment or order by a court of competent jurisdiction or a change in published practice), which change or amendment is announced and becomes effective after the date of the Offering Memorandum (or if the applicable Tax Jurisdiction became a Tax Jurisdiction on a date after the date of the Offering Memorandum, after such later date) (each of the foregoing clauses (1) and (2), a Change in Tax Law).
The Issuer shall not give any such notice of redemption earlier than 60 days prior to the earliest date on which the Issuer or the relevant Guarantor would be obligated to make such payment or Additional Amounts if a payment in respect of the Notes or Note Guarantee were then due and at the time such notice is given, the obligation to pay Additional Amounts must remain in effect. Prior to the mailing of any notice of redemption of the Notes pursuant to the foregoing, the Issuer shall deliver the Trustee an opinion of independent tax counsel of recognized standing qualified under the laws of the relevant Tax Jurisdiction (which counsel shall be reasonably acceptable to the Trustee) to the effect that there has been a Change in Tax Law which would entitle the Issuer to redeem the Notes hereunder. In addition, before the Issuer mails notice of redemption of the Notes as described above, it shall deliver to the Trustee an Officers Certificate to the effect that it cannot avoid its obligation to pay Additional Amounts by the Issuer or the relevant Guarantor taking reasonable measures available to it.
The Trustee will accept and shall be entitled to rely on such Officers Certificate and opinion of counsel as sufficient evidence of the existence and satisfaction of the conditions as described above, in which event it will be conclusive and binding on all of the Holders.
The foregoing provisions of this paragraph 7 will apply, mutatis mutandis, to any successor of the Issuer (or any Guarantor) with respect to a Change in Tax Law occurring after the time such Person becomes successor to the Issuer (or any Guarantor).
8. Notice of Redemption
Notice of redemption will be mailed first-class postage prepaid at least 30 days but not more than 60 days before the Redemption Date to the Holder of this Note to be redeemed at the addresses contained in the Security Register, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture. If this Note is in a denomination larger than $2,000 of principal amount at maturity it may be redeemed in part but only in integral multiples of $1,000 at maturity. In the event of a redemption of less than all of the Notes, the Notes for redemption will be chosen by the Trustee in accordance with the Indenture. If this Note is redeemed subsequent to a Record Date with respect to any Interest Payment Date specified above, then any accrued interest will be paid to the Holder at the close of business on such Record Date. If money sufficient to pay the Redemption Price of and accrued interest on all Notes (or portions thereof) to be redeemed on the Redemption Date is deposited with the applicable Paying
Agent on or before the Redemption Date and certain other conditions are satisfied, interest ceases to accrue on such Notes (or such portions thereof) called for redemption on or after such date.
9. Repurchase at the Option of Holders
If a Change of Control occurs at anytime, the Holder of this Note will have the right to require the Issuer to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of this Note pursuant to a Change of Control Offer on the terms set forth in the Indenture. In the Change of Control Offer, the Issuer shall offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased, plus accrued and unpaid interest and Additional Amounts, if any, on the Notes repurchased to the Change of Control Purchase Date, subject to the rights of Holders on the relevant Record Date to receive interest due on the relevant Interest Payment Date; provided that the Issuer will not be required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer or (2) a notice of redemption has been given pursuant to paragraph 6 above, unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained herein or in the Indenture, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made. The Issuer shall purchase all Notes properly and timely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the procedures that Holders of the Notes must follow to accept the Change of Control Offer.
When the aggregate amount of Excess Proceeds exceeds $20.0 million, within ten Business Days thereof, the Issuer will make an offer (an Asset Sale Offer) to all Holders and may make an offer to all holders of other Indebtedness that is secured by a Lien on the Collateral and that is pari passu with the Notes or any Note Guarantees with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets or events of loss to purchase, prepay or redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest and Additional Amounts, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders on the relevant Record Date to receive interest due on the relevant Interest Payment Date, and will be payable in cash.
If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuer may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into (or to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, or if the aggregate amount of Notes tendered pursuant to a Notes Offer exceeds the amount of the Net Proceeds so applied, the Trustee will select the Notes and such other pari passu Indebtedness, if applicable, to be purchased on a pro rata basis (or in the manner provided in the Indenture), based on the amounts tendered or required to be prepaid or redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
10. Denominations
The Notes (including this Note) are in denominations of $2,000 and integral multiples of $1,000 in excess thereof of principal amount at maturity. The transfer of Notes (including this Note) may be registered, and Notes (including this Note) may be exchanged, as provided in the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.
11. Unclaimed Money
All moneys paid by the Issuer or the Guarantors to the Trustee or a Paying Agent for the payment of the principal of, or premium, if any, or interest on, this Note or any other Note that remain unclaimed at the end of two years after such principal, premium or interest has become due and payable may be repaid to the Issuer or the Guarantors,
subject to applicable law, and the Holder of such Note thereafter may look only to the Issuer or the Guarantors for payment thereof.
12. Discharge and Defeasance
Subject to certain conditions, the Issuer at any time may terminate some or all of its obligations and the obligations of the Guarantors under this Note and each other Note, the Note Guarantees and the Indenture if the Issuer irrevocably deposit with the Trustee U.S. dollars or Government Securities for the payment of principal and interest on the Notes to redemption or maturity, as the case may be.
13. Amendment, Supplement and Waiver
(a) The Issuer, when authorized by a resolution of its Board of Directors (as evidenced by the delivery of such resolutions to the Trustee), the Guarantors, the Security Agent and the Trustee may modify, amend or supplement the Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents without notice to or consent of any Holder:
(1) to cure any ambiguity, omission, error, defect or inconsistency;
(2) to provide for the assumption of the Issuers or a Guarantors obligations to Holders of Notes and Note Guarantees in the case of a consolidation or merger or sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the Issuers or such Guarantors assets, as applicable;
(3) to make any change that would provide any additional rights or benefits to the Holders of Notes or that, in the good faith judgment of the Board of Directors of the Parent Guarantor, does not adversely affect the legal rights under this Indenture of any such holder in any material respect;
(4) to conform the text of the Indenture, the Notes or the Note Guarantees to any provision of the section entitled Description of Notes in the Offering Memorandum to the extent that such provision in the Description of Notes was intended to be a verbatim recitation of a provision of the Indenture, the Notes or the Note Guarantees;
(5) to provide for any Restricted Subsidiary to provide a Note Guarantee in accordance with Section 4.06 of the Indenture and Section 4.15 of the Indenture to add security to or for the benefit of the Notes or to confirm and evidence the release, termination, discharge or retaking of any Note Guarantee or Lien (including the Collateral and the Security Documents) or any amendment in respect thereof with respect to or securing the Notes when such release, termination, discharge or retaking or amendment is permitted under the Indenture, the Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents;
(6) in the case of the Security Documents, to mortgage, pledge, hypothecate or grant a security interest in favor of the Security Agent for the benefit of lenders under the Revolving Credit Facility, in any property which is required by the Revolving Credit Facility (as in effect on the First Escrow Release Date) to be mortgaged, pledged or hypothecated, or in which a security interest is required to be granted to the Security Agent, or to the extent necessary to grant a security interest for the benefit of any Person; provided that the granting of such security interest is not prohibited by the Indenture and Section 4.22 of the Indenture is complied with;
(7) to provide for the issuance of additional Notes in accordance with the limitations set forth in the Indenture as of the Issue Date;
(8) to allow any Guarantor to execute a Supplemental Indenture and a Note Guarantee with respect to the Notes;
(9) to provide for uncertificated Notes in addition to or in place of Definitive Registered Notes (provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the Code); or
(10) to evidence and provide the acceptance of the appointment of a successor Trustee under the Indenture.
In connection with any proposed amendment or supplement in respect of such matters, the Trustee will be entitled to receive, and rely conclusively on, an Opinion of Counsel and/or an Officers Certificate.
(b) Except as provided in Section 9.02(b) of the Indenture and Section 6.04 of the Indenture and without prejudice to Section 9.01 of the Indenture, the Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement, any Additional Intercreditor Agreement and the Security Documents may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), and any existing Default or Event of Default or compliance with any provision of the Indenture, the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes).
(c) Without the consent of each Holder affected, an amendment, supplement or waiver may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose holders must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Note or reduce the premium payable upon the redemption of any such Note or change the time at which such Note may be redeemed;
(3) reduce the rate of or change the time for payment of interest, including default interest, on any Note;
(4) impair the right of any holder of Notes to institute suit for the enforcement of any payment on or with respect to such holders Notes or any Note Guarantee in respect thereof;
(5) waive a Default or Event of Default in the payment of principal of, or interest, Additional Amounts or premium, if any, on, the Notes (except a rescission of acceleration of the Notes by the holders of at least a majority in aggregate principal amount of the then outstanding Notes and a waiver of the payment Default that resulted from such acceleration);
(6) make any Note payable in money other than that stated in the Notes;
(7) make any change in the provisions of the Indenture relating to waivers of past Defaults or the rights of holders of Notes to receive payments of principal of, or interest, Additional Amounts or premium, if any, on, the Notes;
(8) waive a redemption payment with respect to any Note (other than a payment required by Section 4.09 of the Indenture or Section 4.11 of the Indenture);
(9) make any change to or modify the ranking of the Notes in a manner that would adversely affect the holders thereof;
(10) release any Guarantor from any of its obligations under its Note Guarantee or the Indenture, except in accordance with the terms of the Indenture, the Intercreditor Agreement or any Additional Intercreditor Agreement;
(11) release the security interest granted in the Collateral for the benefit of the Trustee and the holders of the Notes, other than pursuant to the terms of the Security Documents or the Indenture, as applicable, except as permitted by the Intercreditor Agreement or any Additional Intercreditor Agreement; or
(12) make any change in the preceding amendment and waiver provisions.
(ii) The consent of the Holders will not be necessary under the Indenture to approve the particular form of any proposed amendment, modification, supplement, waiver or consent. It is sufficient if such consent approves the substance of the proposed amendment, modification, supplement, waiver or consent. A consent to any amendment or waiver under the Indenture by any Holder given in connection with a tender of such Holders Notes will not be rendered invalid by such tender.
14. Defaults and Remedies
This Note and the other Notes have the Events of Default as set forth in Section 6.01 of the Indenture. If an Event of Default (other than an Event of Default specified in Section 6.01(a)(9) of the Indenture) occurs and is continuing, the Trustee or the registered Holders of not less than 25% in aggregate principal amount of the Notes then outstanding by written notice to the Issuer and the Parent Guarantor (and to the Trustee if such notice is given by the Holders), subject to certain limitations, may, and the Trustee, upon the written request of such Holders shall, declare this Note and the other Notes, and any Additional Amounts and accrued interest, to be due and payable immediately. Certain events of bankruptcy or insolvency are Events of Default and shall result in this Note and the other Notes being due and payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Indenture, this Note, the other Notes or the Security Documents except as provided in the Indenture and subject to the Intercreditor Agreement and any Additional Intercreditor Agreement. The Trustee and the Security Agent may refuse to enforce the Indenture, this Note or the other Notes unless it receives security and/or indemnity (including by way of pre-funding) satisfactory to it. Subject to certain limitations and the Intercreditor Agreement (and any Additional Intercreditor Agreement), the Holders of a majority in aggregate principal amount of the Notes may direct the Trustee and the Security Agent in its exercise of any trust or power. The Holders of a majority in aggregate principal amount of the Notes then outstanding by written notice to the Trustee may rescind any acceleration and its consequence if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, or interest that has become due solely because of such acceleration. The above description of Events of Default and remedies is qualified by reference, and subject in its entirety, to the provisions of the Indenture.
15. Ranking
This Note and the other Notes will be general obligations of each Issuer and will rank senior in right of payment to any and all of each Issuers existing and future Indebtedness that is subordinated in right of payment to the Notes, rank equally in right of payment with all of each Issuers existing and future Indebtedness that is not subordinated in right of payment to the Notes, and be structurally subordinated to all existing and future Indebtedness of the Parent Guarantors Subsidiaries that do not provide Note Guarantees.
16. Security
This Note and the other Notes will be secured by the Security Interests in the Collateral, subject to Permitted Collateral Liens. Reference is made to the Indenture for terms relating to such security, including the release, termination and discharge thereof. The Security Documents and the Collateral will be administered by the Security Agent (or in certain circumstances a sub-agent) pursuant to the Security Documents, including the Intercreditor Agreement or any Additional Intercreditor Agreement for the benefit of all Holders and holders of certain Indebtedness
permitted to be secured on the Collateral. The Issuer shall not be required to make any notation on this Note to reflect any grant of such security or any such release, termination or discharge. Each Holder, by accepting a Note, shall be deemed to have agreed to and accepted the terms and conditions of the Intercreditor Agreement or any Additional Intercreditor Agreement (whether then entered into or entered into in the future pursuant to the provisions described herein).
17. Trustee and Security Agent Dealings with the Issuer
The Trustee and the Security Agent under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Issuer, the Guarantors or any of their Affiliates with the same rights it would have if it were not Trustee or the Security Agent. Any Paying Agent, Registrar, co-Registrar or co-Paying Agent may do the same with like rights.
18. No Recourse Against Others
A director, officer, employee, incorporator, member or shareholder, as such, of the Issuer or the Guarantors shall not have any liability for any obligations of the Issuer or the Guarantors under this Note, the other Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability. The waiver and release are part of the consideration for issuance of the Notes.
19. Authentication
This Note shall not be valid until an authorized officer of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this Note.
20. Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
21. ISIN and/or CUSIP Numbers
The Issuer may cause ISIN and/or CUSIP numbers to be printed on the Notes, and if so the Trustee shall use ISIN and/or CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed on the Notes.
22. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
ASSIGNMENT FORM
To assign and transfer this Note, fill in the form below:
(I) or (the Issuer) assign and transfer this Note to
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and irrevocably appoint agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
(Participant in a recognized signature guarantee medallion program)
Date:
Certifying Signature:
In connection with any transfer of any Notes evidenced by this certificate occurring prior to the date that is one year after the later of the date of original issuance of such Notes and the last date, if any, on which the Notes were owned by the Issuer or any of its Affiliates, the undersigned confirms that such Notes are being transferred in accordance with the transfer restrictions set forth in such Notes and:
CHECK ONE BOX BELOW
(1) o to the Parent Guarantor or any Subsidiary; or
(2) o pursuant to an effective registration statement under the U.S. Securities Act of 1933; or
(3) o pursuant to and in compliance with Rule 144A under the U.S. Securities Act of 1933; or
(4) o pursuant to and in compliance with Regulation S under the U.S. Securities Act of 1933; or
(5) o pursuant to another available exemption from the registration requirements of the U.S. Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if box (3) is checked, by executing this form, the Transferor is deemed to have certified that such Notes are being transferred to a person it reasonably believes is a qualified institutional buyer as defined in Rule 144A under the U.S. Securities Act of 1933 who has received notice that such transfer is being made in reliance on Rule 144A; if box (4) is checked, by executing this form, the Transferor is deemed to have certified that such transfer is made pursuant to an offer and sale that occurred outside the United States in compliance with Regulation S under the U.S. Securities Act; and if box (5) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Issuer reasonably requests to confirm that such transfer is being made pursuant to an exemption from or in a transaction not subject to, the registration requirements of the U.S. Securities Act of 1933.
Signature:
Signature Guarantee:
(Participant in a recognized signature guarantee medallion program)
Certifying Signature: Date:
Signature Guarantee:
(Participant in a recognized signature guarantee medallion program)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note or a portion thereof repurchased pursuant to Section 4.09 or 4.11 of the Indenture, check the box: o
If the purchase is in part, indicate the portion (in denominations of $2,000 or any integral multiple of $1,000 in excess thereof) to be purchased:
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Date:
Certifying Signature:
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in another Global Note or for a De-
finitive Registered Note, or exchanges of a part of another Global Note or Definitive Registered Note for an interest
in this Global Note, have been made:
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EXHIBIT B
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RESTRICTED
GLOBAL NOTE TO REGULATION S GLOBAL NOTE5
(Transfers pursuant to § 2.06(b)(ii) of the Indenture)
Citibank, N.A., London Branch
Citigroup Centre
25 Canada Square
Canary Wharf
London E14 5LB
United Kingdom
Attention: Transfer Agent
Re: 7.250% Senior Secured Notes due 2025 (the Notes)
Reference is hereby made to the Indenture dated as of January 30, 2017 (as amended, supplemented or otherwise modified from time to time, the Indenture) among, inter alios, Silversea Cruise Finance Ltd., a limited liability company incorporated under the laws of the Commonwealth of The Bahamas, as Issuer, and Citibank, N.A., London Branch, as Trustee and as Security Agent. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
This letter relates to $ aggregate principal amount of Notes that are held as a beneficial interest in the form of the Restricted Global Note (CUSIP No.: [·]6; ISIN No: [·]7) with DTC in the name of [name of transferor] (the Transferor). The Transferor has requested an exchange or transfer of such beneficial interest for an equivalent beneficial interest in the Regulation S Global Note (CUSIP No.: [·]8; ISIN No: [·]9).
In connection with such request, the Transferor does hereby certify that such transfer has been effected in accordance with the transfer restrictions set forth in the Notes and:
(a) with respect to transfers made in reliance on Regulation S (Regulation S) under the United States Securities Act of 1933, as amended (the U.S. Securities Act), does certify that:
(i) the offer of the Notes was not made to a person in the United States;
(ii) either (i) at the time the buy order is originated the transferee is outside the United States or the Transferor and any person acting on its behalf reasonably believe that the transferee is outside the United States; or (ii) the transaction was executed in, on or through the facilities of a designated offshore securities market described in paragraph (b) of Rule 902 of Regulation S and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;
5 If the Note is a Definitive Registered Note, appropriate changes need to be made to the form of this transfer certificate.
6 Issue Date Rule 144A CUSIP: 82845L AA8
7 Issue Date Rule 144A ISIN: US82845LAA89
8 Issue Date Regulation S CUSIP: P9000L AA5
9 Issue Date Regulation S ISIN: USP9000LAA54
(iii) no directed selling efforts have been made in the United States by the Transferor, an affiliate thereof or any person their behalf in contravention of the requirements of Rule 903 or 904 of Regulation S, as applicable;
(iv) the transaction is not part of a plan or scheme to evade the registration requirements of the U.S. Securities Act; and
(v) the Transferor is not the Issuer, a distributor of the Notes, an affiliate of the Issuer or any such distributor (except any officer or director who is an affiliate solely by virtue of holding such position) or a person acting on behalf of any of the foregoing.
(b) with respect to transfers made in reliance on Rule 144 the Transferor certifies that the Notes are being transferred in a transaction permitted by Rule 144 under the U.S. Securities Act.
You, the Issuer, the Guarantors and the Trustee are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
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EXHIBIT C
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM REGULATION S
GLOBAL NOTE TO RESTRICTED GLOBAL NOTE
(Transfers pursuant to § 2.06(b)(iii) of the Indenture)
Citibank, N.A., London Branch
Citigroup Centre
25 Canada Square
Canary Wharf
London E14 5LB
United Kingdom
Attention: Transfer Agent
Re: 7.250% Senior Secured Notes due 2025 (the Notes)
Reference is hereby made to the Indenture dated as of January 30, 2017 (as amended, supplemented or otherwise modified from time to time, the Indenture) among, inter alios, Silversea Cruise Finance Ltd., a limited liability company incorporated under the laws of the Commonwealth of The Bahamas, as Issuer, and Citibank, N.A., London Branch, as Trustee and as Security Agent. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
This letter relates to $ aggregate principal amount at maturity of Notes that are held in the form of the Regulation S Global Note with DTC (CUSIP No.: [·]10; ISIN No.: [·]11) in the name of [name of transferor] (the Transferor) to effect the transfer of the Notes in exchange for an equivalent beneficial interest in the Restricted Global Note (CUSIP No.: [·]12; ISIN No.: [·]13).
In connection with such request, and in respect of such Notes the Transferor does hereby certify that such Notes are being transferred in accordance with the transfer restrictions set forth in the Notes and that:
CHECK ONE BOX BELOW:
o the Transferor is relying on Rule 144A under the Securities Act for exemption from such Acts registration requirements; it is transferring such Notes to a person it reasonably believes is a QIB as defined in Rule 144A that purchases for its own account, or for the account of a qualified institutional buyer, and to whom the Transferor has given notice that the transfer is made in reliance on Rule 144A and the transfer is being made in accordance with any applicable securities laws of any state of the United States; or
o the Transferor is relying on an exemption other than Rule 144A from the registration requirements of the Securities Act, subject to the Issuers and the Trustees right prior to any such offer, sale or transfer to require the delivery of an Opinion of Counsel, certification and/or other information satisfactory to each of them.
10 Issue Date Regulation S CUSIP: P9000L AA5
11 Issue Date Regulation S ISIN: USP9000LAA54
12 Issue Date Rule 144A CUSIP: 82845L AA8
13 Issue Date Rule 144A ISIN: US82845LAA89
You, the Issuer, the Guarantors, and the Trustee are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
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EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE dated as of [], 20[] (this Supplemental Indenture) by and among Silversea Cruise Finance Ltd. (the Issuer), the other parties listed as New Guarantors on the signature pages hereto (each, a New Guarantor and, collectively, the New Guarantors) and Citibank N.A., London Branch, as trustee (in such capacity, the Trustee).
W I T N E S SETH
WHEREAS, the Issuer, the Trustee and the other parties thereto have heretofore executed and delivered an Indenture, dated as of January 30, 2017 (as amended, supplemented or otherwise modified from time to time, the Indenture), providing for the issuance of 7.250% Senior Secured Notes due 2025 of the Issuer (the Notes), initially in the aggregate principal amount of $550,000,000;
[WHEREAS, it is a condition to the First Escrow Release Date that the New Guarantors execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantors shall unconditionally guarantee (the Note Guarantees) all of the Issuers Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture;]
WHEREAS, pursuant to Section 9.01 of the Indenture, the Issuer and the Trustee are authorized to execute and deliver this Supplemental Indenture; and
WHEREAS, all necessary acts have been done to make this Supplemental Indenture a legal, valid and binding agreement of each New Guarantor in accordance with the terms of this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
ARTICLE II
AGREEMENT TO BE BOUND
SECTION 2.1 Agreement to Guarantee. The New Guarantor acknowledges that it has received and reviewed a copy of the Indenture and all other documents it deems necessary to review in order to enter into this Supplemental Indenture, and acknowledges and agrees to (i) join and become a party to the Indenture as indicated by its signature below; (ii) be bound by the Indenture, as of the date hereof, as if made by, and with respect to, each signatory hereto; and (iii) perform all obligations and duties required of a Guarantor pursuant to the Indenture. The New Guarantor hereby agrees to provide a Note Guarantee on the terms and subject to the conditions set forth in the Indenture, including, but not limited to, Article Ten thereof.
SECTION 2.2 Execution and Delivery. The New Guarantor agrees that the Note Guarantee shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
[SECTION 2.3 Guarantee Limitations. Schedule IV of the Indenture is hereby amended by adding the following:
[New Guarantee Limitation Language].]
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 3.2 Severability. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 3.3 Ratification. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder heretofore or hereafter shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture.
SECTION 3.4 Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Supplemental Indenture. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or other electronic transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto. Signatures of the parties hereto transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for all purposes.
SECTION 3.5 Effect of Headings. The headings herein are convenience of reference only and shall not affect the construction hereof.
SECTION 3.6 The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the New Guarantor.
SECTION 3.7 Benefits Acknowledged. The New Guarantors Note Guarantee is subject to the terms and conditions set forth in the Indenture. The New Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee and this Supplemental Indenture are knowingly made in contemplation of such benefits.
SECTION 3.8 Successors. All agreements of the New Guarantor in this Supplemental Indenture shall bind its successors, except as otherwise provided in this Supplemental Indenture. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
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CITIBANK N.A., LONDON BRANCH, as Trustee | |
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SILVERSEA CRUISE FINANCE LTD.,
as Issuer
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CITIBANK, N.A., LONDON BRANCH,
as Trustee
________________________________________
SECOND SUPPLEMENTAL INDENTURE
Dated as of February 1, 2019
to
INDENTURE
Dated as of January 30, 2017
________________________________________
7.250% SENIOR SECURED NOTES DUE 2025
SECOND SUPPLEMENTAL INDENTURE dated as of February 1, 2019 (this Second Supplemental Indenture) by and between Silversea Cruise Finance Ltd. (the Issuer) and Citibank N.A., London Branch, as trustee (in such capacity, the Trustee).
W I T N E S S E T H
WHEREAS, the Issuer, the Trustee and the other parties thereto have heretofore executed and delivered an Indenture, dated as of January 30, 2017 (the Base Indenture and, as supplemented by the Supplemental Indenture, dated February 1, 2017, the Indenture), providing for the issuance of 7.250% Senior Secured Notes due 2025 of the Issuer (the Notes), initially in the aggregate principal amount of $550,000,000;
WHEREAS, on April 10, 2018, the Issuer issued additional Notes in an aggregate principal amount of $70,000,000 pursuant to the Indenture;
WHEREAS, the Issuer desires to amend certain provisions of the Indenture, as set forth in Article II of this Second Supplemental Indenture (the Proposed Amendments);
WHEREAS, Section 9.02 of the Base Indenture permits the Issuer and the Trustee to enter into a supplemental indenture to the Indenture for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, the Indenture, subject to certain conditions, including obtaining the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding;
WHEREAS, the Holders of at least a majority in aggregate principal amount of the Notes then outstanding have duly consented to the Proposed Amendments as set forth in the Consent Solicitation Statement of the Issuer dated January 28, 2019 and the Issuer and the Trustee are authorized to execute and deliver this Second Supplemental Indenture; and
WHEREAS, all necessary acts have been done to make this Second Supplemental Indenture a legal, valid and binding agreement of the Issuer in accordance with the terms of this Second Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
ARTICLE II
AMENDMENTS
Section 2.1 Amendments to the Indenture. Effective and operative as of the date hereof:
(a) The Indenture is hereby amended by adding the following definitions to Section 1.01 in appropriate alphabetical sequences:
An Investment Grade rating means a rating of Baa3 or better by Moodys (or its equivalent under any successor rating categories of Moodys) or BBB- or better by S&P (or its equivalent under any successor rating categories of S&P), or if such Rating Agency ceases to rate the relevant series of the Notes, as the case may be, for reasons outside of the Issuers control, the equivalent investment grade credit rating from any Rating Agency selected by the Issuer as a replacement Rating Agency.
Rating Agencies means each of Moodys and S&P and Rating Agency means either of Moodys or S&P; provided that if either Moodys or S&P does not make a rating of the relevant series of the Notes publicly available, for reasons outside of the Issuers control, the Issuer shall use commercially reasonable efforts to select a nationally recognized statistical rating organization or organizations, as the case may be, which shall then be substituted for Moodys or S&P or both of them, as the case may be.
Royal Caribbean means Royal Caribbean Cruises Ltd., a Liberian corporation.
(b) The Indenture is hereby amended by adding the following Section 4.29 to Article Four:
SECTION 4.29. Covenant Suspension.
During any period of time (a Suspension Period) that: (i) the Notes have Investment Grade ratings from both Rating Agencies and (ii) Royal Caribbean beneficially owns, directly or indirectly, in excess of 50% (the Ownership Threshold) of the outstanding shares of the Parent Guarantor (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a Covenant Suspension Event), the Issuer and its Restricted Subsidiaries will not be subject to the following provisions of this Indenture (collectively, the Suspended Covenants), provided that during a Suspension Period, the Issuer may not designate any of its Subsidiaries as Unrestricted Subsidiaries unless the Issuer could have designated such Subsidiaries as Unrestricted Subsidiaries in compliance with this Indenture assuming the covenants set forth below had not been suspended:
(a) Section 4.03 Maintenance of Properties
(b) Section 4.06 Incurrence of Indebtedness and Issuance of Preferred Stock
(c) Section 4.08 Restricted Payments
(d) Section 4.10 Transactions with Affiliates
(e) Section 4.15 Limitation on Issuance of Guarantees of Indebtedness
(f) Section 4.16 Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
(g) Section 4.19 Reports to Holders
(h) Section 4.24 Limitation on Sale and Leaseback Transactions
(i) Section 5.01(a)(4) Merger, Consolidation or Sale of Assets
In the event that the Issuer and its Restricted Subsidiaries are not subject to the Suspended Covenants with respect to the Notes for any Suspension Period and, subsequently, (x) either one or both Rating Agencies withdraws its rating or downgrades the rating assigned to the Notes below the required Investment Grade rating and/or (y) Royal Caribbean ceases to meet the Ownership Threshold (such date of withdrawal, downgrade or cessation in clause (x) or (y), a Reinstatement Date), then the Issuer and its Restricted Subsidiaries will after the Reinstatement Date again be subject to the Suspended Covenants with respect to future events for the benefit of the Notes.
On the Reinstatement Date, all Indebtedness incurred during a Suspension Period will be (i) classified as having been incurred or issued pursuant to the first paragraph of Section 4.06 or one of the clauses set forth in the definition of Permitted Debt (to the extent such Indebtedness would be permitted to be incurred thereunder as of the Reinstatement Date and after giving effect to Indebtedness incurred prior to the Suspension Period and outstanding on the Reinstatement Date) and (ii) subject to Section 4.06 and Section 4.15. To the extent such Indebtedness would not be so permitted to be incurred pursuant to Section 4.06, such Indebtedness will be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under clause (1) of the definition of Permitted Debt. To the extent Guarantees were incurred prior to or during a Suspension Period, the Issuer and its Restricted Subsidiaries shall on the Reinstatement Date comply with Section 4.15.
Calculations made after the Reinstatement Date of the amount available to be made as Restricted Payments under Section 4.08 will be made as though such covenant had been in effect from the Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during the Suspension Period not otherwise permitted pursuant to any of clauses (1) through (10) under Section 4.08(b) will reduce the amount available to be made as Restricted Payments under Section 4.08(a)(iii) to the extent provided therein; provided, however, that the amount available to be made as a Restricted Payment on the Reinstatement Date shall not be reduced to below zero solely as a result of such Restricted Payments.
Notwithstanding that the Suspended Covenants may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of a failure to comply with the Suspended Covenants during a Suspension Period (or on the Reinstatement Date or after a Suspension Period based solely on events that occurred during the Suspension Period).
ARTICLE III
MISCELLANEOUS
Section 3.1 Governing Law. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 3.2 Severability. In case any provision in this Second Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 3.3 Ratification. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Second Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder heretofore or hereafter shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Second Supplemental Indenture.
Section 3.4 Counterparts. The parties may sign any number of copies of this Second Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Second Supplemental Indenture. The exchange of copies of this Second Supplemental Indenture and of signature pages by facsimile or other electronic transmission shall constitute effective execution and delivery of this Second Supplemental Indenture as to the parties hereto. Signatures of the parties hereto transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for all purposes.
Section 3.5 Effect of Headings. The headings herein are convenience of reference only and shall not affect the construction hereof.
Section 3.6 The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Second Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Issuer.
Section 3.7 Successors. All agreements of the Issuer in this Second Supplemental Indenture shall bind its successors, except as otherwise provided in this Second Supplemental Indenture. All agreements of the Trustee in this Second Supplemental Indenture shall bind its successors.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed, all as of the date first above written.
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SILVERSEA CRUISE FINANCE LTD. | |
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/s/ Roberto Martinoli |
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Title: CEO |
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CITIBANK N.A., LONDON BRANCH, as Trustee | |
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Title: Vice President |
[Signature Page to Supplemental Indenture]
TABLE OF CONTENTS | ||
PAGE | ||
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS | ||
SECTION 1.1. Defined Terms | 2 | |
SECTION 1.2. Use of Defined Terms | 14 | |
SECTION 1.3. Cross-References | 14 | |
SECTION 1.4. Accounting and Financial Determinations | 14 | |
ARTICLE II COMMITMENTS AND BORROWING PROCEDURES | ||
SECTION 2.1. Commitment | 14 | |
SECTION 2.2. Commitment of the Lenders; Termination and Reduction of Commitments | 15 | |
SECTION 2.3. Borrowing Procedure | 15 | |
SECTION 2.4. Funding | 17 | |
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES | ||
SECTION 3.1. Repayments | 18 | |
SECTION 3.2. Prepayment | 18 | |
SECTION 3.3. Interest Provisions. | 19 | |
SECTION 3.3.1. Rates. | 19 | |
SECTION 3.3.2. [Intentionally omitted] | 19 | |
SECTION 3.3.3. Interest stabilisation. | 19 | |
SECTION 3.3.4. Post-Maturity Rates. | 20 | |
SECTION 3.3.5. Payment Dates. | 20 | |
SECTION 3.3.6. Interest Rate Determination; Replacement Reference Banks | 20 | |
SECTION 3.4. Commitment Fees. | 21 | |
SECTION 3.4.1. Payment. | 21 | |
SECTION 3.5. Other Fees. | 21 | |
ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS | ||
SECTION 4.1. LIBO Rate Lending Unlawful. | 21 | |
SECTION 4.2. Deposits Unavailable | 22 | |
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. | 22 | |
SECTION 4.4. Funding Losses | 24 | |
SECTION 4.4.1. Indemnity. | 24 | |
SECTION 4.4.2. Exclusion | 25 | |
SECTION 4.5. Increased Capital Costs | 25 | |
SECTION 4.6. Taxes | 26 | |
SECTION 4.7. Reserve Costs | 28 | |
SECTION 4.8. Payments, Computations, etc. | 29 | |
SECTION 4.9. Replacement Lenders, etc. | 30 | |
SECTION 4.10. Sharing of Payments | 31 | |
SECTION 4.10.1. Payments to Lenders. | 31 | |
SECTION 4.10.2. Redistribution of payments. | 31 | |
SECTION 4.10.3. Recovering Lender's rights. | 31 | |
SECTION 4.10.4. Reversal of redistribution | 31 | |
SECTION 4.10.5. Exceptions. | 32 | |
SECTION 4.11. Set-off | 32 | |
SECTION 4.12. Use of Proceeds | 32 | |
SECTION 4.13. FATCA Information. | 32 |
SECTION 4.14. Resignation of the Facility Agent | 33 | |
ARTICLE V CONDITIONS TO BORROWING | ||
SECTION 5.1. Advance of the Loan | 34 | |
SECTION 5.1.1. Resolutions, etc. | 34 | |
SECTION 5.1.2. Opinions of Counsel. | 34 | |
SECTION 5.1.3. BpiFAE Insurance Policy. | 35 | |
SECTION 5.1.4. Closing Fees, Expenses, etc. | 35 | |
SECTION 5.1.5. Compliance with Warranties, No Default, etc | 35 | |
SECTION 5.1.6. Loan Request | 35 | |
SECTION 5.1.7. Foreign Exchange Counterparty Confirmations. | 36 | |
SECTION 5.1.8. Protocol of delivery. | 36 | |
SECTION 5.1.9. Title to Purchased Vessel. | 36 | |
SECTION 5.1.10. Interest Stabilisation. | 36 | |
SECTION 5.1.11. Escrow Account Security. | 37 | |
ARTICLE VI REPRESENTATIONS AND WARRANTIES | ||
SECTION 6.1. Organization, etc. | 37 | |
SECTION 6.2. Due Authorization, Non-Contravention, etc. | 38 | |
SECTION 6.3. Government Approval, Regulation, etc. | 38 | |
SECTION 6.4. Compliance with Environmental Laws | 38 | |
SECTION 6.5. Validity, etc. | 38 | |
SECTION 6.6. No Default, Event of Default or Prepayment Event | 39 | |
SECTION 6.7. Litigation | 39 | |
SECTION 6.8. The Purchased Vessel | 39 | |
SECTION 6.9. Obligations rank pari passu; Liens | 39 | |
SECTION 6.10. Withholding, etc. | 40 | |
SECTION 6.11. No Filing, etc. Required | 40 | |
SECTION 6.12. No Immunity | 40 | |
SECTION 6.13. Investment Company Act | 40 | |
SECTION 6.14. Regulation U | 40 | |
SECTION 6.15. Accuracy of Information | 40 | |
SECTION 6.16. Compliance with Laws. | 41 | |
ARTICLE VII COVENANTS | ||
SECTION 7.1. Affirmative Covenants | 41 | |
SECTION 7.1.1. Financial Information, Reports, Notices, etc. | 41 | |
SECTION 7.1.2. Approvals and Other Consents. | 42 | |
SECTION 7.1.3. Compliance with Laws, etc. | 43 | |
SECTION 7.1.4. The Purchased Vessel. | 43 | |
SECTION 7.1.5. Insurance | 44 | |
SECTION 7.1.6. Books and Records | 44 | |
SECTION 7.1.7. BpiFAE Insurance Policy/French Authority Requirements | 44 | |
SECTION 7.2. Negative Covenants | 44 | |
SECTION 7.2.1. Business Activities | 44 | |
SECTION 7.2.2. Indebtedness | 45 | |
SECTION 7.2.3. Liens | 45 | |
SECTION 7.2.4. Financial Condition | 47 | |
SECTION 7.2.5. [Intentionally omitted] | 48 |
SECTION 7.2.6. Consolidation, Merger, etc. | 48 | |
SECTION 7.2.7. Asset Dispositions, etc. | 49 | |
SECTION 7.3. Lender incorporated in the Federal Republic of Germany | 49 | |
ARTICLE VIII EVENTS OF DEFAULT | ||
SECTION 8.1. Listing of Events of Default | 49 | |
SECTION 8.1.1. Non-Payment of Obligations | 49 | |
SECTION 8.1.2. Breach of Warranty | 49 | |
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations | 49 | |
SECTION 8.1.4. Default on Other Indebtedness | 50 | |
SECTION 8.1.5. Bankruptcy, Insolvency, etc. | 50 | |
SECTION 8.2. Action if Bankruptcy | 51 | |
SECTION 8.3. Action if Other Event of Default | 51 | |
ARTICLE IX PREPAYMENT EVENTS | ||
SECTION 9.1. Listing of Prepayment Events | 51 | |
SECTION 9.1.1. Change of Control | 51 | |
SECTION 9.1.2. Unenforceability | 52 | |
SECTION 9.1.3. Approvals | 52 | |
SECTION 9.1.4. Non-Performance of Certain Covenants and Obligations | 52 | |
SECTION 9.1.5. Judgments | 52 | |
SECTION 9.1.6. Condemnation, etc. | 52 | |
SECTION 9.1.7. Arrest | 52 | |
SECTION 9.1.8. Sale/Disposal of the Purchased Vessel | 52 | |
SECTION 9.1.9. BpiFAE Insurance Policy | 52 | |
SECTION 9.1.10. Illegality. | 53 | |
SECTION 9.2. Mandatory Prepayment | 53 | |
SECTION 9.3. Mitigation | 53 | |
ARTICLE X THE FACILITY AGENT AND THE ECA AGENT | ||
SECTION 10.1. Actions | 53 | |
SECTION 10.2. Indemnity | 54 | |
SECTION 10.3. Funding Reliance, etc | 54 | |
SECTION 10.4. Exculpation | 55 | |
SECTION 10.5. Successor | 55 | |
SECTION 10.6. Loans by the Facility Agent | 56 | |
SECTION 10.7. Credit Decisions | 56 | |
SECTION 10.8. Copies, etc | 57 | |
SECTION 10.9. The Agents’ Rights | 57 | |
SECTION 10.10. The Facility Agent’s Duties | 57 | |
SECTION 10.11. Employment of Agents | 58 | |
SECTION 10.12. Distribution of Payments | 58 | |
SECTION 10.13. Reimbursement | 58 | |
SECTION 10.14. Instructions | 59 | |
SECTION 10.15. Payments | 59 | |
SECTION 10.16. “Know your customer” Checks | 59 | |
SECTION 10.17. No Fiduciary Relationship | 59 | |
SECTION 10.18. Illegality | 59 | |
ARTICLE XI MISCELLANEOUS PROVISIONS |
SECTION 11.1. Waivers, Amendments, etc. | 59 | |
SECTION 11.2. Notices | 61 | |
SECTION 11.3. Payment of Costs and Expenses | 62 | |
SECTION 11.4. Indemnification | 62 | |
SECTION 11.5. Survival | 64 | |
SECTION 11.6. Severability | 64 | |
SECTION 11.7. Headings | 64 | |
SECTION 11.8. Execution in Counterparts, Effectiveness, etc. | 64 | |
SECTION 11.9. Third Party Rights | 64 | |
SECTION 11.10. Successors and Assigns | 64 | |
SECTION 11.11. Sale and Transfer of the Loan; Participations in the Loan | 65 | |
SECTION 11.11.1. Assignments | 65 | |
SECTION 11.11.2. Participations | 67 | |
SECTION 11.11.3. Register | 68 | |
SECTION 11.11.4. Rights of BpiFAE to payments | 68 | |
SECTION 11.12. Other Transactions | 68 | |
SECTION 11.13. BpiFAE Insurance Policy. | 68 | |
SECTION 11.13.1. Terms of BpiFAE Insurance Policy | 68 | |
SECTION 11.13.2. Obligations of the Borrower. | 69 | |
SECTION 11.13.3. Obligations of the ECA Agent and the Lenders. | 69 | |
SECTION 11.14. Law and Jurisdiction | 70 | |
SECTION 11.14.1. Governing Law | 70 | |
SECTION 11.14.2. Jurisdiction | 70 | |
SECTION 11.14.3. Alternative Jurisdiction | 70 | |
SECTION 11.14.4. Service of Process | 70 | |
SECTION 11.15. Confidentiality | 71 | |
SECTION 11.16. French Authority Requirements. | 72 | |
SECTION 11.17. Waiver of immunity. | 72 | |
SECTION 11.18. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. | 72 |
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 |
(A) | The Borrower and Chantiers de l’Atlantique S.A. (previously known as 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 which shall be owned by a Subsidiary of the Borrower, Celebrity Edge, Inc. (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 (the “Maximum Non-Yard Costs Amount”) and the Other Basic Contract Price Increases (as defined below) for the Purchased Vessel of an amount which, when aggregated with the Non-Yard Costs, does not exceed EUR 78,300,000, but which amount shall not exceed in the aggregate EUR 661,300,000; |
(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 BpiFAE Premium (as defined below), |
(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 |
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) | 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 4:00 p.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 (and having regard, where applicable, to Sections 2.3 d), e) and f) below), 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 BpiFAE 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 BpiFAE Advance Amount”) that will fund the BpiFAE Premium shall be equal to the Dollar amount that corresponds to the EUR amount of the BpiFAE 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 BpiFAE Advance Amount on the date such Loan Request is delivered, and the Lenders shall deposit such US Dollar BpiFAE 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 BpiFAE Advance Amount. If the Borrower elects to so finance the BpiFAE Premium, the Borrower will be deemed to have directed the Facility Agent to pay over directly to BpiFAE on behalf of the Borrower that portion of the EUR amount of the BpiFAE 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 BpiFAE Advance Amount attributable to the BpiFAE Premium paid by the Facility Agent to BpiFAE on behalf of the Borrower. |
e) | If the Borrower elects to finance that part of the BpiFAE 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 BpiFAE Balance Amount”) that will fund the BpiFAE Premium shall be equal to the Dollar amount that corresponds to the EUR amount of the BpiFAE 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 BpiFAE Balance Amount on the date such Loan Request is delivered, and the Lenders shall deposit such US Dollar BpiFAE Balance 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 BpiFAE Balance Amount. If the Borrower elects to so finance the BpiFAE Premium and receive the proceeds in EUR, the Borrower will be deemed to have directed the Facility Agent to pay over to the Borrower or, if the Borrower so requires in a Loan Request, directly to the Builder on behalf of the Borrower that portion of the EUR amount of the BpiFAE 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 US Dollar BpiFAE Balance Amount. |
f) | In relation to any Additional Advance that is to be advanced to the Borrower in respect of the Non-Yard Costs it is agreed that: |
i) | an amount equal to the US Dollar Equivalent of eighty per cent (80%) of the Paid Non-Yard Costs shall be advanced to the Borrower on the Actual Delivery Date in accordance with the provisions of Section 2.3 c), which amount shall be determined |
ii) | an amount equal to the US Dollar Equivalent of eighty per cent (80%) of the Unpaid Non-Yard Costs, which amount shall be determined by the Facility Agent based on the amounts contained in the Delivery Non-Yard Costs Certificate (the “Escrow Amount”), shall be remitted by the Facility Agent (and the Borrower hereby instructs the Facility Agent to make such remittance) to the Escrow Account and such amount shall be regulated in accordance with the following provisions of this Section 2.3 f) and the Escrow Account Security, |
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 |
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 acceleration on a date other than the scheduled last day of an Interest Period or otherwise scheduled date for repayment or payment; 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 |
(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. |
(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. |
a) | pay directly to the relevant authority the full amount required to be so withheld or deducted; |
b) | promptly forward to the Facility Agent an official receipt or other documentation satisfactory to the Facility Agent evidencing such payment to such authority; and |
c) | pay to the Facility Agent for the account of the Lenders such additional amount or amounts as is necessary to ensure that the net amount actually received by each Lender will equal the full amount such Lender would have received had no such withholding or deduction been required. |
a) | 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 |
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): |
(A) | a FATCA Exempt Party; or |
(B) | not a FATCA Exempt Party; |
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 (and which shall be updated to include reference to the Escrow Account Security); |
b) | Norton Rose Fulbright LLP, counsel to the Facility Agent and the Lenders, covering the matters set forth in Exhibit B-2 hereto (and which shall be updated to include reference to the Escrow Account Security) and, if the BpiFAE Insurance Policy is |
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) | where an Additional Advance is requested in respect of the Non-Yard Costs, the Delivery Non-Yard Costs Certificate; |
b) | 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 Paid Non-Yard Costs to be financed as at the time of issue and a declaration from the Borrower and the Builder in substantially |
c) | 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 |
d) | 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 |
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: |
d) | within seven days after the Actual Delivery Date, provide the following to the Facility Agent with respect to the Purchased Vessel: |
a) | Indebtedness secured by Liens of the type described in Section 7.2.3; |
b) | Indebtedness owing to the Borrower or a 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 (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such Indebtedness, as applicable) 10.0% 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 |
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 (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such indebtedness, as applicable) 10.0% of the total assets of the Borrower and its Subsidiaries (the “Lien Basket |
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 by more than 60 days 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; |
n) | Liens on cash or Cash Equivalents or marketable securities securing obligations in respect of Hedging Instruments not incurred for speculative purposes or securing letters of credit that support such obligations; |
o) | deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and deposits securing liabilities to insurance carriers under insurance or self-insurance arrangements; |
p) | easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary; and |
q) | licenses, sublicenses, leases or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries. |
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. |
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) | the surviving corporation shall have assumed in a writing, delivered to the Facility Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents; and |
(B) | the surviving corporation shall, promptly upon the request of the Facility Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Facility Agent or any Lender in order for the Facility Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. |
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 |
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) | this Article X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Facility Agent under this Agreement; and |
b) | Section 11.3 and Section 11.4 shall continue to inure to its benefit. |
a) | contravene or be in breach of the terms of the BpiFAE 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, BpiFAE 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 properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when transmitted provided it is received in legible form; any notice, if transmitted by electronic mail, shall be deemed given upon acknowledgment of receipt by the recipient. |
b) | So long as 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 |
d) | The Facility Agent agrees that the receipt of Communications by the Facility Agent at its e-mail address set forth above shall constitute effective delivery of such Communications to the Facility Agent for purposes hereunder and any other Loan Document (and any guaranties, security agreements and other agreements relating thereto). |
a) | except to the extent permitted under Section 7.2.6, the Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of the Facility Agent, each Lender and BpiFAE; 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 |
a) | The BpiFAE Insurance Policy will cover 100% of the Loan. |
b) | The BpiFAE 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, BpiFAE 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 BpiFAE 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 BpiFAE Insurance Policy from BpiFAE, the ECA Agent shall (subject to any confidentiality undertakings given to BpiFAE by the ECA Agent pursuant to the terms of the BpiFAE 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 BpiFAE under the BpiFAE Insurance Policy as necessary to ensure that the Lenders obtain the support of BpiFAE pursuant to the BpiFAE 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 BpiFAE 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 BpiFAE 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 |
d) | 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. |
a) | the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and |
b) | the effects of any Bail-in Action on any such liability, including, if applicable: |
(i) | a reduction in full or in part or cancellation of any such liability; |
(ii) | a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent |
(iii) | the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority. |
Commitment | ||
5.00% of the Maximum Loan Amount | By__________________________ 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 |
Commitment | ||
21.00% of the Maximum Loan Amount | By__________________________ Name: Title: | |
Citigroup Centre Canada Square London E14 5LB United Kingdom Attention: Guido Cicolani Cristiana Ilievici Konstantinos Frangos 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: guido.cicolani@citi.com Cristiana.ilievici@citi.com konstantinos.frangos@citi.com kara.catt@citi.com romina.coates@citi.com |
Commitment | ||
0.50% of the Maximum Loan Amount | By__________________________ 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 Email: david.peyroux@bbva.com / |
Commitment | ||
12.00% of the Maximum Loan Amount | By__________________________ Name: Title: | |
Lending Office: 374, rue Saint-Honoré 75001 Paris France Operational address: Ciudad Financiera Avenida de Cantabria s/n Edificio Encinar 2a planta 28600 Boadilla del Monte Spain Fax No: +34 91 257 1682 Attention: Elise Regnault Beatriz de la Mata Ecaterina Mucuta Vanessa Berrio Vélez Ana Sanz Gómez Tel No: +34 912893722 +1 212-297-2942 +33 1 53 53 70 46 +34 91 289 10 28 +34 91 289 17 90 E-mail: elise.regnault@gruposantander.com bdelamata@santander.us ecaterina.mucuta@gruposantander.com vaberrio@gruposantander.com anasanz@gruposantander.com MiddleOfficeParis@gruposantander.com |
Commitment | ||
5.25% of the Maximum Loan Amount | By__________________________ Name: Title: | |
HSBC France – Global Banking Agency Operations (GBAO) Transaction Manager Unit 103 avenue des Champs Elysées 75008 Paris France Attention: Guillaume Gladu Alexandra Penda Fax No: + 33 1 40 70 28 80 Tel No: + 33 1 40 70 73 81 / + 33 1 41 02 67 50 E-mail: Guillaume.gladu@hsbc.fr alexandra.penda@hsbc.fr Copy to: HSBC France 103 avenue des Champs Elysées 75008 Paris France Attention: Julie Bellais Celine Karsenty Fax No: + 33 1 40 70 78 93 Tel No: + 33 1 40 70 28 59 / + 33 1 40 70 22 97 E-mail: julie.bellais@hsbc.fr celine.karsenty@hsbc.fr |
Commitment | ||
12.02% of the Maximum Loan Amount | By__________________________ Name: Title: | |
Lending Office: 29 Boulevard Haussmann 75009 Paris France Address for Operational / Servicing matters: Attention: Mouna KHACHABI Société Générale 189, rue d’Aubervilliers 75886 PARIS CEDEX 18 France Tel No: +33 1 58 98 30 78 Email : mouna.khachabi@sgcib.com; par-oper-caf-dmt6@sgcib.com; For Credit matters: OPER/FIN/SMO/EXT Attention: Olivier Gueguen and Muriel Baumann Tel No: +33 (0)1 42 13 07 52 / +33 (0)1 58 98 22 761 Fax No: +33 1 46 92 45 97 Email: muriel.baumann@sgcib.com olivier.gueguen@sgcib.com |
Commitment | ||
44.23 % of the Maximum Loan Amount | By__________________________ Name: Title: | |
1-3, rue de Passeur de Boulogne – CS 80054 92861 Issy-les-Moulineaux Cedex 9 France Contact Person Loan Administration Department: Direction du Crédit Export: Pierre-Marie Debreuille / Anne Crépin Direction des Opérations: Dominique Brossard / Patrick Sick Telephone: Pierre-Marie Debreuille +33 1 73 28 87 64 Anne Crépin +33 1 73 28 88 59 Dominique Brossard +33 1 73 28 91 93 Patrick Sick +33 1 73 28 87 66 Email: pierre-marie.debreuille@sfil.fr anne.crepin@sfil.fr dominique.brossard@sfil.fr patrick.sick@sfil.fr refinancements-export@sfil.fr creditexport_ops@sfil.fr Fax: + 33 1 73 28 85 04 |
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 |
Exhibit 10.20
EXECUTION VERSION
Dated 5 October 2018
AZAIREMIA FINANCE LIMITED
as Borrower
ROYAL CARIBBEAN CRUISES LTD.
as Buyer
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
and
THE BANKS AND FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1
as Mandated Lead Arrangers and Lenders
FIRST SUPPLEMENTAL AGREEMENT
relating to Hull No. K34 at Chantiers de lAtlantique S.A.
(previously known as STX France S.A.)
NORTON ROSE FULBRIGHT
Contents
Clause |
Page | |
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1 |
Definitions |
2 |
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2 |
Agreement of the Parties |
3 |
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3 |
Amendments to Relevant Documents |
3 |
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4 |
Representations and warranties |
3 |
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5 |
Conditions |
4 |
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6 |
Confirmation of continued effect |
5 |
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7 |
Costs and expenses |
5 |
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8 |
Miscellaneous and notices |
5 |
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9 |
Governing law |
6 |
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Schedule 1 The Mandated Lead Arrangers and the Lenders |
7 | |
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Schedule 2 Documents and evidence required as conditions precedent (referred to in clause 5.1) |
11 | |
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Schedule 3 Amendments to Facility Agreement |
13 | |
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Schedule 4 Amendments to Novation Agreement |
14 | |
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Schedule 5 Amendments to Agency and Trust Deed |
17 | |
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Schedule 6 Form of Effective Date certificate |
19 |
THIS FIRST SUPPLEMENTAL AGREEMENT is dated 5 October 2018 and made BETWEEN:
(1) AZAIREMIA FINANCE LIMITED as Borrower;
(2) ROYAL CARIBBEAN CRUISES LTD. as Buyer;
(3) CITIBANK EUROPE PLC, UK BRANCH as Facility Agent;
(4) CITICORP TRUSTEE COMPANY LIMITED as Security Trustee;
(5) CITIBANK N.A., LONDON BRANCH as Global Coordinator;
(6) HSBC FRANCE as French Coordinating Bank;
(7) SUMITOMO MITSUI BANKING CORPORATION EUROPE LIMITED, PARIS BRANCH as ECA Agent;
(8) THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 as Lenders; and
(9) BANCO BILBAO VIZCAY 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.
WHEREAS:
(A) By a building contract dated 16 February 2015 (as amended by addendum no. 1 dated 20 June 2016, addendum no. 2 dated 28 July 2016 and addendum No. 3 dated 25 January 2018 the Building Contract) between Chantiers de lAtlantique S.A. (previously known as STX France S.A.) (the Seller) and the Buyer, the Seller has agreed to design, construct, equip and complete a passenger cruise vessel with Hull No. K34 (the Vessel) for the Buyer.
(B) By a receivable purchase agreement dated 22 June 2016 (as amended by addendum no. 1 dated 28 July 2016, the Receivable Purchase Agreement), the Seller has agreed to sell its contractual rights to the Receivable to the Borrower.
(C) The Borrower will fund the purchase of the Receivable through the borrowing of advances in an amount of up to 555,288,000 pursuant to a facility agreement dated 22 June 2016 (the Facility Agreement) between (1) the Borrower, (2) the Facility Agent, (3) the Security Trustee, (4) the ECA Agent, (5) the Global Coordinator, (6) the French Coordinating Bank, (7) the Mandated Lead Arrangers, and (8) the Lenders.
(D) By a buyer consent agreement dated 28 July 2016 (the Buyer Consent Agreement) between (1) the Borrower, (2) the Seller, (3) the Facility Agent, (4) the Security Trustee, (5) the Refund Guarantors, (6) the RG Agent and (7) the Buyer, the parties have agreed (among other things) the basis upon which the Buyer has consented to the sale of the Receivable and has granted a first priority pre-delivery mortgage over the Vessel.
(E) By a novation agreement dated 22 June 2016 (the Novation Agreement) between (1) the Borrower, (2) the Buyer, (3) the Facility Agent, (4) the Security Trustee, (5) the ECA Agent, (6) the Global Coordinator, (7) the French Coordinating Bank, (8) the Mandated Lead Arrangers, and (9) the Lenders, the parties agreed to the future novation, amendment and restatement of the Facility Agreement with the Buyer as borrower in the form set out therein.
(F) In connection with certain requirements of Coface (now known as Bpifrance Assurance Export) in relation to the drawdown arrangements under the Facility Agreement in respect of the Non-
Yard Costs it has been agreed that certain amendments should be made to the Facility Agreement and the Novated Credit Agreement.
(G) The Buyer has also requested that certain changes be made to the provisions of the Novated Credit Agreement so that this reflects certain changes that were agreed to the $1.15 billion revolving credit facility of the Buyer pursuant to amendment and restatement of this facility on 10 December 2017.
(H) This Agreement sets out the terms and conditions upon which the parties to this Agreement shall agree to the amendments referred to in recitals (F) and (G) above.
NOW IT IS HEREBY AGREED as follows:
1. Definitions
1.1 Defined expressions
Words and expressions defined in the Facility Agreement and/or the Novation Agreement shall unless the context otherwise requires or unless otherwise defined herein, have the same meanings when used in this Agreement.
1.2 Definitions
In this Agreement, unless the context otherwise requires:
Effective Date means the date, no later than 12 October 2018, specified as the Effective Date in the certificate signed by the Facility Agent and the Buyer in accordance with clause 5.4.
Party means each of the parties to this Agreement.
Relevant Documents means the Facility Agreement, the Novation Agreement and the Agency and Trust Deed.
1.3 Relevant Documents
References in the Relevant Documents to this Agreement or this Deed shall, with effect from the Effective Date and unless the context otherwise requires, be references to such Relevant Document as amended by this Agreement and words such as herein, hereof, hereunder, hereafter, hereby and hereto, where they appear in the Relevant Documents, shall be construed accordingly.
1.4 Headings
Clause headings and the table of contents are inserted for convenience of reference only and shall be ignored in the interpretation of this Agreement.
1.5 Construction of certain terms
Clause 1.5 of the Buyer Consent Agreement shall apply to this agreement (mutatis mutandis) as if set out herein and as if references therein to this Deed were references to this Agreement.
1.6 Designation as a Transaction Document
This Agreement is designated as a Transaction Document.
2 Agreement of the Parties
Each of the Parties, relying upon the representations and warranties on the part of the other Parties contained in clause 4, agrees that, subject to the terms and conditions of this Agreement and in particular, but without prejudice to the generality of the foregoing, fulfilment on or before 12 October 2018 of the conditions contained in clause 5 and Schedule 2, the Relevant Documents shall be amended on the terms set out in clause 3.
3 Amendments to Relevant Documents
3.1 Amendments to Facility Agreement
The Facility Agreement shall, with effect on and from the Effective Date, be (and it is hereby) amended in accordance with the amendments set out in Schedule 3 and (as so amended) will continue to be binding upon each of the Borrower and the Finance Parties in accordance with its terms as so amended.
3.2 Amendments to Novation Agreement
The Novation Agreement shall, with effect on and from the Effective Date, be (and it is hereby) amended in accordance with the amendments set out in Schedule 4 and (as so amended) will continue to be binding upon each of the Borrower, the Finance Parties and the Buyer in accordance with its terms as so amended.
3.3 Amendments to Agency and Trust Deed
The Agency and Trust Deed shall, with effect on and from the Novation Effective Date, be (and it is hereby) amended in accordance with the amendments set out in Schedule 5 and (as so amended) will continue to be binding upon each of the Finance Parties (save for the French Coordinating Bank as set out below) and the Buyer (as borrower and reflecting the accession set out below) in accordance with its terms as so amended. In addition, on the Novation Effective Date and at the same time as the amendments referred to above:
(a) the Buyer shall accede to the Agency and Trust Deed as the borrower thereunder and in replacement of the Borrower; and
(b) the Borrower and the French Coordinating Bank shall cease to be parties to the Agency and Trust Deed and shall be released from any obligations thereunder,
and as such arrangements are reflected in the amendment to the Agency and Trust Deed set out in Schedule 5.
3.4 Continued force and effect
The provisions of the Relevant Documents shall continue in full force and effect (as amended by this Agreement) and each of the Relevant Documents and this Agreement shall be read and construed as one instrument.
4 Representations and warranties
4.1 General representations and warranties
Each Party represents and warrants (each severally for and in respect of itself) to each of the other Parties hereto that as at the date hereof:
(a) it is a corporation or limited liability company, duly incorporated and validly existing under the laws of its country of incorporation;
(b) it has the power to enter into, perform and deliver, and each has taken all necessary corporate action to authorise the entry into, performance and delivery of, this Agreement and the transactions contemplated by this Agreement;
(c) this Agreement constitutes its legal, valid, binding and enforceable obligations subject to any relevant qualifications as to matters of law of the type set out in the legal opinions delivered under the Facility Agreement on the Signing Date (as defined in the Facility Agreement); and
(d) all contractual and other consents or approvals necessary in connection with the authorisation, execution, delivery, validity, enforceability or admissibility in evidence of this Agreement or the performance by it of its obligations under this Agreement have been or will, when required, be obtained or made.
4.2 Borrower additional representations
The Borrower further represents and warrants to the Finance Parties that the representations and warranties set out in clause 7.1 of the Facility Agreement are true and correct, including to the extent that they may have been or shall be amended by this Agreement as if made at the date of this Agreement with reference to the facts and circumstances existing on such date.
4.3 Buyer additional representations
The Buyer further represents and warrants to the Finance Parties that the representations and warranties set out in the first paragraph of clause 8.2 of the Novation Agreement are true and correct, including to the extent that they may have been or shall be amended by this Agreement as if made at the date of this Agreement with reference to the facts and circumstances existing on such date.
4.4 Repetition of representations and warranties
The representations and warranties in clauses 4.1 to 4.3 shall be deemed repeated by each relevant Party on and as of the Effective Date, as if made with reference to the facts and circumstances existing on the Effective Date.
5 Conditions
5.1 Documents and evidence
The agreement of the Parties referred to in clause 2 shall be subject to:
(a) the receipt by the Facility Agent or its duly authorised representative of the documents and evidence specified in Part A of Schedule 2; and
the receipt by the Buyer or its duly authorised representative of the documents and evidence specified in Part B of Schedule 2,
in each case in form and substance satisfactory to the relevant Party.
5.2 General conditions precedent
The agreement of the Finance Parties referred to in clause 2 shall be subject to the further conditions that on the Effective Date:
(a) the representations and warranties of the other Parties contained in clause 4 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 shall have occurred and be continuing or would result from the amendment of the Relevant Documents pursuant to this Agreement.
5.3 Waiver of conditions precedent
The conditions set out in clauses 5.1 and 5.2 of this Agreement are for the sole benefit of the Party specified in the relevant clause, who shall be entitled to waive the fulfilment for its benefit of any of those conditions on such terms as it deems fit (in the case of the Facility Agent, acting on the instructions of the Majority Lenders).
5.4 Effective Date certificate
Upon fulfilment or waiver of the conditions in this clause 5, the Facility Agent and the Buyer shall sign a certificate in the form set out in Schedule 6 confirming that the Effective Date has occurred and such certificate shall be binding on all Parties.
6 Confirmation of continued effect
Each of the Parties acknowledge and agree that the Transaction Documents to which they are respectively a party shall remain in full force and effect save that, with effect on and from the Effective Date, the references therein to any Relevant Document shall be construed as references to such document as amended and, as applicable, acceded to by this Agreement.
7 Costs and expenses
7.1 Expenses
The Buyer agrees to pay on demand, on an after-tax basis, all costs and expenses in connection with:
the preparation, execution and delivery of; and
the administration, modification and amendment of,
this Agreement and all other documents to be delivered hereunder or thereunder, including, without limitation, the reasonable fees and out-of-pocket expenses of Norton Rose Fulbright LLP as the legal adviser to the Lenders, the Facility Agent and the Security Trustee and any correspondent counsel separately agreed in writing between the Seller and the Facility Agent with respect thereto on a basis (in relation to the costs referred to in 0 above) separately agreed between the Seller and the Facility Agent.
7.2 Value Added Tax
All fees and expenses payable pursuant to this clause 7 shall be paid together with value added tax or any similar tax (if any) properly chargeable thereon.
7.3 Stamp and other duties
The Buyer agrees to pay on demand all stamp, documentary, registration or other like duties or taxes (including any duties or taxes payable by a Finance Party) imposed on or in connection with this Agreement and shall indemnify the other Parties against any liability arising by reason of any delay or omission by the Buyer to pay such duties or taxes.
8 Miscellaneous and notices
8.1 Notices
The provisions of clause 23.1 of the Buyer Consent Agreement shall extend and apply to the giving or making of notices or demands hereunder as if the same were expressly stated herein with all necessary changes and so that any notices to a Lender shall be sent to the relevant Lender to its address and contact details set out in Schedule 1.
8.2 Counterparts
This Agreement may be executed in any number of counterparts and by the different parties on separate counterparts, each of which when so executed and delivered shall be an original but all counterparts shall together constitute one and the same instrument.
8.3 Limitation on recourse
The provisions of clause 16 (Limitation on recourse) of the Facility Agreement shall apply equally to this Agreement.
9 Governing law
9.1 Law
This Agreement and any non-contractual obligations connected with it are governed by and shall be construed in accordance with English law.
9.2 Submission to jurisdiction
Each of the Parties hereto agree for the benefit of the other Parties hereto that any legal action or proceedings arising out of or in connection with this Agreement and any non-contractual obligations connected with it against any of the Parties hereto or any of their respective assets shall be brought in the English courts, and each of the Parties hereto irrevocably and unconditionally submits to the jurisdiction of the English courts. Each of the Parties hereto further agrees that only the courts of England and not those of any other State shall have jurisdiction to determine any claim which a Party may have against the another Party hereto arising out of or in connection with this Agreement.
Each of the Borrower and the Buyer confirms and agrees for the benefit of the each of the other Parties hereto that those agents appointed by it pursuant to clause 27.2 of the Buyer Consent Agreement are also designated, appointed and empowered to receive for it and on its behalf, service of process issued out of the English courts in any legal action or proceedings arising out of or in connection with this Agreement and any non-contractual obligations connected with it.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to be duly executed on the date first above written.
Schedule 1
The Mandated Lead Arrangers and the Lenders
Name |
Facility Office and contact details |
Banco Bilbao Vizcaya Argentaria, Paris Branch |
29 avenue de lOpéra 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
Email: david.peyroux@bbva.com / laura.luca@bbva.com / asuncion.merodio@bbva.com
|
Banco Santander, S.A, Paris Branch |
Facility Office:
374, rue Saint-Honoré 75001 Paris France
Operational address:
Ciudad Financiera
Fax No: +34 91 257 1682
Attention: Elise Regnault Beatriz de la Mata Ecaterina Mucuta Vanessa Berrio Vélez Ana Sanz Gómez
Tel No: +34 912893722 +1 212-297-2942 +33 1 53 53 70 46 +34 91 289 10 28 +34 91 289 17 90
E-mail: elise.regnault@gruposantander.com bdelamata@santander.us ecaterina.mucuta@gruposantander.com vaberrio@gruposantander.com anasanz@gruposantander.com MiddleOfficeParis@gruposantander.com
|
Name |
Facility Office and contact details |
Citibank N.A., London Branch |
Citigroup Centre Canada Square London E14 5LB United Kingdom
Attention: Guido Cicolani / Cristiana Ilievici / Konstantinos Frangos / Romina Coates / Kara Catt
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: guido.cicolani@citi.com cristiana.ilievici@citi.com konstantinos.frangos@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 Elysées 75008 Paris France
Attention: Guillaume Gladu / Alexandra Penda
Fax No: + 33 1 40 70 28 80
Tel No: + 33 1 40 70 73 81 / + 33 1 41 02 67 50
E-mail: guillaume.gladu@hsbc.fr alexandra.penda@hsbc.fr
Copy to:
HSBC France 103 avenue des Champs Elysées 75008 Paris France
Attention: Julie Bellais Celine Karsenty
Fax No: + 33 1 40 70 78 93
Tel No: + 33 1 40 70 28 59 / + 33 1 40 70 22 97
E-mail: julie.bellais@hsbc.fr |
Name |
Facility Office and contact details |
|
celine.karsenty@hsbc.fr |
Société Générale |
Facility Office: 29 Boulevard Haussmann 75009 Paris France
Address for Notices:
189, rue dAubervilliers 75886 PARIS CEDEX 18 France OPER/FIN/SMO/EXT
Attention: Olivier Gueguen and Muriel Baumann
Tel No: +33 (0)1 42 13 07 52 / +33 (0)1 58 98 22 761
Fax No: +33 1 46 92 45 97
Email: muriel.baumann@sgcib.com
olivier.gueguen@sgcib.com |
Sumitomo Mitsui Banking Corporation Europe Limited, Paris Branch |
1/3/5 rue Paul Cézanne 75008 Paris France
Attention: Cedric le Duigou Guillaume Branco Cam Truong Claire Lucien Helene Ly
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 Helene Ly: + 33 1 44 90 48 76
E-mail: cedric_leduigou@fr.smbcgroup.com guillaume_branco@fr.smbcgroup.com cam_truong@fr.smbcgroup.com claire_lucien@fr.smbcgroup.com helene_ly@fr.smbcgroup.com |
SFIL |
1-3, rue de Passeur de Boulogne CS 80054 92861 Issy-les-Moulineaux Cedex 9 France
Contact Person Loan Administration Department: |
Name |
Facility Office and contact details |
|
Direction du Crédit Export: Pierre-Marie Debreuille / Anne Crépin Direction des Opérations: Dominique Brossard / Patrick Sick
Telephone: Pierre-Marie Debreuille +33 1 73 28 87 64 Anne Crépin +33 1 73 28 88 59 Dominique Brossard +33 1 73 28 91 93 Patrick Sick +33 1 73 28 87 66
Email: pierre-marie.debreuille@sfil.fr anne.crepin@sfil.fr dominique.brossard@sfil.fr patrick.sick@sfil.fr refinancements-export@sfil.fr creditexport_ops@sfil.fr
Fax: + 33 1 73 28 85 04 |
Schedule 2
Documents and evidence required as conditions precedent
(referred to in clause 5.1)
Part A: Facility Agent
1 A certificate from an authorised signatory of each of the Borrower and the Buyer confirming that there have been no changes or amendments to the constitutional documents or board resolutions of such Party, certified copies of which were previously delivered (directly or indirectly) to the Facility Agent pursuant to the Facility Agreement or attaching revised versions in case of any changes or amendments.
2 A copy, certified by an authorised officer of each of the Borrower and the Buyer of (a) resolutions of the board of directors of such Party approving the transactions contemplated by this Agreement and authorising a person or persons to execute this Agreement and any notices or other documents to be given pursuant hereto and (b) any power of attorney issued pursuant to such resolutions (which shall be certified as being in full force and effect and not revoked or withdrawn).
3 A copy, certified as a true copy by an authorised signatory of the Buyer, of addendum no. 3 to the Building Contract dated 25 January 2018 which (among other things) adjusts the provisions dealing with payment of the Basic Contract Price.
4 Payment of all fees, commissions, costs and expenses required to be paid to the Finance Parties on or before the Effective Date under any of the Transaction Documents or under any mandate letter or fee letter entered into in connection with the Transaction Documents.
5 Written acceptance by the agents for service of process in respect of the Borrower and the Buyer in relation to this Agreement.
6 An opinion of Norton Rose Fulbright LLP, English legal advisers.
7 An opinion of Watson Farley & Williams LLP, Liberian legal advisers.
8 An opinion of Walkers, Cayman Islands legal advisers.
9 A confirmation from Walkers Fiduciary Limited as shareholder of the Borrower that the share charge dated 22 June 2016 remains in full force and effect.
10 Evidence, in a form and substance satisfactory to the Lenders, that BpiFrance Assurance Export has agreed to the changes referred to in this Agreement.
Part B: Buyer
1 A certificate from an authorised signatory of the Borrower confirming that there have been no changes or amendments to the constitutional documents or board resolutions of the Borrower, certified copies of which were previously delivered to the Facility Agent pursuant to the Facility Agreement or attaching revised versions in case of any changes or amendments.
2 A copy, certified by an authorised officer of the Borrower of (a) resolutions of the board of directors of the Borrower approving the transactions contemplated by this Agreement and authorising a person or persons to execute this Agreement and any notices or other documents to be given pursuant hereto and (b) any power of attorney issued pursuant to such resolutions (which shall be certified as being in full force and effect and not revoked or withdrawn).
3 Written acceptance by the agent for service of process in respect of the Borrower in relation to this Agreement.
Schedule 3
Amendments to Facility Agreement
A new clause 9.2(h) shall be incorporated as follows:
(h) where the Borrower requests that the final Advance be made available on the Actual Delivery Date, the Facility Agent is satisfied that the Vessel will be delivered by the Seller to the Buyer (or its nominee) at the same time as the making of the final Advance..
Schedule 4
Amendments to Novation Agreement
1 The definition of Spot Rate of Exchange in clause 1.1 shall be deleted and replaced with the following new definition:
Spot Rate of Exchange means, for the purposes of determining an equivalent amount in EUR of Dollars on any relevant date, the mid FX Rate EUR/USD (published on the basis of the 1:00pm London Bloomberg BFIX rate) two (2) Business Days before that date.
2 The words First Payment Date (as defined in the Receivable Purchase Agreement) in clause 5.6(b) (Notification of New Borrowers hedging arrangements) shall be deleted and replaced with the words Signing Date.
3 The words ECB FX in clause 5.7 (Additional Spot Rate of Exchange) shall be deleted and replaced with the words Bloomberg BFIX.
4 The form of Novated Credit Agreement set out in Schedule 3 shall be replaced with the form set out in Part A of the Annex to this Schedule.
5 New Exhibits E-1 and E-2 shall be added to the Novated Credit Agreement in the form set out in Part B of the Annex to this Schedule.
EXECUTION VERSION
HULL NO. K34 CREDIT AGREEMENT
dated 22 June 2016 as novated, amended and restated
on the Actual Delivery Date pursuant to
a novation agreement dated 22 June 2016
BETWEEN
Royal Caribbean Cruises Ltd.
as the Borrower,
the Lenders from time to time party hereto,
Citibank N.A., London Branch
as Global Coordinator
Sumitomo Mitsui Banking Corporation Europe Limited, Paris Branch
as ECA Agent
and
Citibank Europe plc, UK Branch
as Facility Agent
and
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
TABLE OF CONTENTS
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PAGE |
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS | |
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SECTION 1.1. Defined Terms |
2 |
|
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SECTION 1.2. Use of Defined Terms |
15 |
|
|
SECTION 1.3. Cross-References |
15 |
|
|
SECTION 1.4. Accounting and Financial Determinations |
15 |
|
|
ARTICLE II COMMITMENTS AND BORROWING PROCEDURES | |
|
|
SECTION 2.1. Commitment |
16 |
|
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SECTION 2.2. Commitment of the Lenders; Termination and Reduction of Commitments |
16 |
|
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SECTION 2.3. Borrowing Procedure |
16 |
|
|
SECTION 2.4. Funding |
19 |
|
|
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES | |
|
|
SECTION 3.1. Repayments |
19 |
|
|
SECTION 3.2. Prepayment |
19 |
|
|
SECTION 3.3. Interest Provisions |
21 |
|
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SECTION 3.3.1. Rates |
21 |
|
|
SECTION 3.3.2. [Intentionally omitted] |
21 |
|
|
SECTION 3.3.3. Interest stabilisation |
21 |
|
|
SECTION 3.3.4. Post-Maturity Rates |
21 |
|
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SECTION 3.3.5. Payment Dates |
21 |
|
|
SECTION 3.3.6. Interest Rate Determination; Replacement Reference Banks |
22 |
|
|
SECTION 3.4. Commitment Fees |
22 |
|
|
SECTION 3.4.1. Payment |
22 |
|
|
SECTION 3.5. Other Fees |
23 |
ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS | |
|
|
SECTION 4.1. LIBO Rate Lending Unlawful |
23 |
|
|
SECTION 4.2. Deposits Unavailable |
23 |
|
|
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. |
24 |
|
|
SECTION 4.4. Funding Losses |
25 |
|
|
SECTION 4.4.1. Indemnity |
25 |
|
|
SECTION 4.4.2. Exclusion |
27 |
|
|
SECTION 4.5. Increased Capital Costs |
27 |
|
|
SECTION 4.6. Taxes |
28 |
|
|
SECTION 4.7. Reserve Costs |
30 |
|
|
SECTION 4.8. Payments, Computations, etc. |
31 |
|
|
SECTION 4.9. Replacement Lenders, etc. |
31 |
|
|
SECTION 4.10. Sharing of Payments |
32 |
|
|
SECTION 4.10.1. Payments to Lenders |
32 |
|
|
SECTION 4.10.2. Redistribution of payments |
32 |
|
|
SECTION 4.10.3. Recovering Lenders rights |
32 |
|
|
SECTION 4.10.4. Reversal of redistribution |
33 |
|
|
SECTION 4.10.5. Exceptions |
33 |
|
|
SECTION 4.11. Set-off |
33 |
|
|
SECTION 4.12. Use of Proceeds |
33 |
|
|
SECTION 4.13. FATCA Information |
34 |
|
|
SECTION 4.14. Resignation of the Facility Agent |
35 |
|
|
ARTICLE V CONDITIONS TO BORROWING | |
|
|
SECTION 5.1. Advance of the Loan |
35 |
|
|
SECTION 5.1.1. Resolutions, etc. |
35 |
|
|
SECTION 5.1.2. Opinions of Counsel |
36 |
SECTION 5.1.3. BpiFAE Insurance Policy |
36 |
|
|
SECTION 5.1.4. Closing Fees, Expenses, etc. |
36 |
|
|
SECTION 5.1.5. Compliance with Warranties, No Default, etc. |
36 |
|
|
SECTION 5.1.6. Loan Request |
37 |
|
|
SECTION 5.1.7. Foreign Exchange Counterparty Confirmations |
37 |
|
|
SECTION 5.1.8. Protocol of delivery |
37 |
|
|
SECTION 5.1.9. Title to Purchased Vessel |
37 |
|
|
SECTION 5.1.10. Interest Stabilisation |
37 |
|
|
SECTION 5.1.1. Escrow Account Security |
39 |
|
|
ARTICLE VI REPRESENTATIONS AND WARRANTIES | |
|
|
SECTION 6.1. Organization, etc. |
39 |
|
|
SECTION 6.2. Due Authorization, Non-Contravention, etc. |
39 |
|
|
SECTION 6.3. Government Approval, Regulation, etc. |
39 |
|
|
SECTION 6.4. Compliance with Environmental Laws |
40 |
|
|
SECTION 6.5. Validity, etc. |
40 |
|
|
SECTION 6.6. No Default, Event of Default or Prepayment Event |
40 |
|
|
SECTION 6.7. Litigation |
40 |
|
|
SECTION 6.8. The Purchased Vessel |
40 |
|
|
SECTION 6.9. Obligations rank pari passu; Liens |
41 |
|
|
SECTION 6.10. Withholding, etc. |
41 |
|
|
SECTION 6.11. No Filing, etc. Required |
41 |
|
|
SECTION 6.12. No Immunity |
41 |
|
|
SECTION 6.13. Investment Company Act |
41 |
|
|
SECTION 6.14. Regulation U |
41 |
|
|
SECTION 6.15. Accuracy of Information |
41 |
|
|
SECTION 6.16. Compliance with Laws |
42 |
ARTICLE VII COVENANTS | |
|
|
SECTION 7.1. Affirmative Covenants |
42 |
|
|
SECTION 7.1.1. Financial Information, Reports, Notices, etc. |
42 |
|
|
SECTION 7.1.2. Approvals and Other Consents |
43 |
|
|
SECTION 7.1.3. Compliance with Laws, etc. |
44 |
|
|
SECTION 7.1.4. The Purchased Vessel |
44 |
|
|
SECTION 7.1.5. Insurance |
45 |
|
|
SECTION 7.1.6. Books and Records |
45 |
|
|
SECTION 7.1.7. BpiFAE Insurance Policy/French Authority Requirements |
45 |
|
|
SECTION 7.2. Negative Covenants |
45 |
|
|
SECTION 7.2.1. Business Activities |
45 |
|
|
SECTION 7.2.2. Indebtedness |
46 |
|
|
SECTION 7.2.3. Liens |
46 |
|
|
SECTION 7.2.4. Financial Condition |
48 |
|
|
SECTION 7.2.5. [Intentionally omitted] |
49 |
|
|
SECTION 7.2.6. Consolidation, Merger, etc. |
49 |
|
|
SECTION 7.2.7. Asset Dispositions, etc. |
49 |
|
|
SECTION 7.3. Lender incorporated in the Federal Republic of Germany |
50 |
|
|
ARTICLE VIII EVENTS OF DEFAULT | |
|
|
SECTION 8.1. Listing of Events of Default |
50 |
|
|
SECTION 8.1.1. Non-Payment of Obligations |
50 |
|
|
SECTION 8.1.2. Breach of Warranty |
50 |
|
|
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations |
50 |
|
|
SECTION 8.1.4. Default on Other Indebtedness |
50 |
|
|
SECTION 8.1.5. Bankruptcy, Insolvency, etc. |
51 |
|
|
SECTION 8.2. Action if Bankruptcy |
52 |
SECTION 8.3. Action if Other Event of Default |
52 |
|
|
ARTICLE IX PREPAYMENT EVENTS | |
|
|
SECTION 9.1. Listing of Prepayment Events |
52 |
|
|
SECTION 9.1.1. Change of Control |
52 |
|
|
SECTION 9.1.2. Unenforceability |
52 |
|
|
SECTION 9.1.3. Approvals |
53 |
|
|
SECTION 9.1.4. Non-Performance of Certain Covenants and Obligations |
53 |
|
|
SECTION 9.1.5. Judgments |
53 |
|
|
SECTION 9.1.6. Condemnation, etc. |
53 |
|
|
SECTION 9.1.7. Arrest |
53 |
|
|
SECTION 9.1.8. Sale/Disposal of the Purchased Vessel |
53 |
|
|
SECTION 9.1.9. BpiFAE Insurance Policy |
53 |
|
|
SECTION 9.1.10. Illegality |
53 |
|
|
SECTION 9.2. Mandatory Prepayment |
54 |
|
|
SECTION 9.3. Mitigation |
54 |
|
|
ARTICLE X THE FACILITY AGENT AND THE ECA AGENT | |
|
|
SECTION 10.1. Actions |
54 |
|
|
SECTION 10.2. Indemnity |
54 |
|
|
SECTION 10.3. Funding Reliance, etc. |
55 |
|
|
SECTION 10.4. Exculpation |
55 |
|
|
SECTION 10.5. Successor |
56 |
|
|
SECTION 10.6. Loans by the Facility Agent |
57 |
|
|
SECTION 10.7. Credit Decisions |
57 |
|
|
SECTION 10.8. Copies, etc. |
57 |
|
|
SECTION 10.9. The Agents Rights |
57 |
|
|
SECTION 10.10. The Facility Agents Duties |
58 |
SECTION 10.11. Employment of Agents |
58 |
|
|
SECTION 10.12. Distribution of Payments |
58 |
|
|
SECTION 10.13. Reimbursement |
58 |
|
|
SECTION 10.14. Instructions |
59 |
|
|
SECTION 10.15. Payments |
59 |
|
|
SECTION 10.16. Know your customer Checks |
59 |
|
|
SECTION 10.17. No Fiduciary Relationship |
59 |
|
|
SECTION 10.18. Illegality |
59 |
|
|
ARTICLE XI MISCELLANEOUS PROVISIONS | |
|
|
SECTION 11.1. Waivers, Amendments, etc. |
59 |
|
|
SECTION 11.2. Notices |
61 |
|
|
SECTION 11.3. Payment of Costs and Expenses |
62 |
|
|
SECTION 11.4. Indemnification |
62 |
|
|
SECTION 11.5. Survival |
64 |
|
|
SECTION 11.6. Severability |
64 |
|
|
SECTION 11.7. Headings |
64 |
|
|
SECTION 11.8. Execution in Counterparts, Effectiveness, etc. |
64 |
|
|
SECTION 11.9. Third Party Rights |
64 |
|
|
SECTION 11.10. Successors and Assigns |
64 |
|
|
SECTION 11.11. Sale and Transfer of the Loan; Participations in the Loan |
65 |
|
|
SECTION 11.11.1. Assignments |
65 |
|
|
SECTION 11.11.2. Participations |
67 |
|
|
SECTION 11.11.3. Register |
68 |
|
|
SECTION 11.11.4. Rights of BpiFAE to payments |
68 |
|
|
SECTION 11.12. Other Transactions |
68 |
|
|
SECTION 11.13. BpiFAE Insurance Policy |
68 |
SECTION 11.13.1. Terms of BpiFAE Insurance Policy |
68 |
|
|
SECTION 11.13.2. Obligations of the Borrower |
69 |
|
|
SECTION 11.13.3. Obligations of the ECA Agent and the Lenders |
69 |
|
|
SECTION 11.14. Law and Jurisdiction |
70 |
|
|
SECTION 11.14.1. Governing Law |
70 |
|
|
SECTION 11.14.2. Jurisdiction |
70 |
|
|
SECTION 11.14.3. Alternative Jurisdiction |
70 |
|
|
SECTION 11.14.4. Service of Process |
70 |
|
|
SECTION 11.15. Confidentiality |
71 |
|
|
SECTION 11.16. French Authority Requirements |
71 |
|
|
SECTION 11.17. Waiver of immunity |
72 |
|
|
SECTION 11.18. Acknowledgement and Consent to Bail-In of EEA Financial Institutions |
72 |
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 |
|
|
|
|
Exhibit E-1 |
- |
|
Form of Delivery Non-Yard Costs Certificate |
|
|
|
|
Exhibit E-2 |
- |
|
Form of Final Non-Yard Costs Certificate |
CREDIT AGREEMENT
HULL NO. K34 CREDIT AGREEMENT, dated 22 June 2016 as novated, amended and restated on the Actual Delivery Date (as defined below), is among Royal Caribbean Cruises Ltd., a Liberian corporation (the Borrower), Sumitomo Mitsui Banking Corporation Europe Limited, Paris Branch in its capacity as agent for the Lenders referred to below in respect of matters related to BpiFrance Assurance Export (in such capacity, the ECA Agent), Citibank Europe plc, UK Branch in its capacity as facility agent (in such capacity, the Facility Agent) and the financial institutions listed in Schedule 1 to the Novation Agreement (as defined below) as lenders (in such capacity, together with each of the other Persons that shall become a Lender in accordance with clause 12 of the Novation Agreement or Section 11.11.1 hereof, each of them individually a Lender and, collectively, the Lenders).
W I T N E S S E T H:
WHEREAS,
(A) The Borrower and Chantiers de lAtlantique S.A. (previously known as 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 Builders hull number K34 which shall be owned by a Subsidiary of the Borrower, Celebrity Edge, Inc. (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 (the Maximum Non-Yard Costs Amount) and the Other Basic Contract Price Increases (as defined below) for the Purchased Vessel of an amount which, when aggregated with the Non-Yard Costs, does not exceed EUR 68,300,000, but which amount shall not exceed in the aggregate EUR 697,940,000.
(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 BpiFAE Premium (as defined below),
being an amount no greater than EUR 652,624,540 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 the Borrower as an Additional Advance pursuant to the Novation Agreement and this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not underscored) when used in this Agreement, including its preamble and recitals, shall, when capitalized, except where the context otherwise requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms thereof):
Accumulated Other Comprehensive Income (Loss) means at any date the Borrowers accumulated other comprehensive income (loss) on such date, determined in accordance with GAAP.
Actual Delivery Date means the date on which the Purchased Vessel is delivered by the Builder to, and accepted by, the Borrower under the Construction Contract, being also the date on which the final balance of the Loan is advanced by way of the Additional Advances.
Additional Advances is defined in the Novation Agreement.
Affiliate of any Person means any other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person. A Person shall be deemed to be controlled by any other Person if such other Person possesses, directly or indirectly, power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
Agent means either the ECA Agent or the Facility Agent and Agents means both of them.
Agreement means, on any date, this credit agreement as originally in effect on the Signing Date and as novated, amended and restated by the Novation Agreement and as thereafter from time to time amended, supplemented, amended and restated, or otherwise modified and in effect on such date.
Anti-Corruption Laws means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption.
Applicable Commitment Rate means (x) from the Signing Date up to but excluding April 30,2018, 0.15% per annum, (y) from April 30, 2018 up to but excluding April 30, 2019, 0.25% per annum, and (z) from April 30, 2019 until the Commitment Fee Termination Date, 0.30% per annum.
Applicable Jurisdiction means the jurisdiction or jurisdictions under which the Borrower is organized, domiciled or resident or from which any of its business activities are conducted or in which any of its properties are located and which has jurisdiction over the subject matter being addressed.
Approved Appraiser means any of the following: Barry Rogliano Salles, Paris, H Clarkson & Co. Ltd., London, R.S. Platou Shipbrokers, Norway, or Fearnley AS, Norway.
Assignee Lender is defined in Section 11.11.1.
Authorized Officer means those officers of the Borrower authorized to act with respect to the Loan Documents and whose signatures and incumbency shall have been certified to the Facility Agent by the Secretary or an Assistant Secretary of the Borrower.
Bail-In Action means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
Bail-In Legislation means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
Bank of Nova Scotia Agreement means the U.S. $1,428,000,000 amended and restated credit agreement dated as of December 4, 2017 among the Borrower, as borrower, the various financial institutions as are or shall become parties thereto, as lenders, and The Bank of Nova Scotia, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
Basic Contract Price is as defined in the Construction Contract.
Borrower is defined in the preamble.
BpiFAE means BpiFrance Assurance Export, the French export credit agency, a French société par action simplifiée à associé unique with its registered office at 27-31, avenue du Général Leclerc, 94710 Maisons-Alfort Cedex, France, registered at the trade and companies registry of Créteil under number 815 276 308 and includes its successors in title or any other person succeeding to BpiFrance Assurance Export in the role as export credit agency of the Republic of France to manage and provide under its control, on its behalf and in its name the public export guarantees as provided by article L 432-1 of the French insurance code.
BpiFAE Enhanced Guarantee means the enhanced guarantee (garantie rehaussée) issued or to be issued by BpiFAE to the benefit of CAFFIL in accordance with article 84 of the French Amending Finance Law 2012 (as amended) in relation to the refinancing of SFILs participation and Commitments under the Loan, and any other documents (including any security) entered into or to be entered into by SFIL with CAFFIL and/or BpiFAE in relation thereto.
BpiFAE Insurance Policy means the export credit insurance policy in respect of the Loan issued by BpiFAE for the benefit of the Lenders.
BpiFAE Premium means the premium payable to BpiFAE under and in respect of the BpiFAE Insurance Policy.
Builder is defined in the preamble.
Business Day means any day which is neither a Saturday or Sunday nor a legal holiday on which banks are authorized or required to be closed in New York City, London, Madrid or Paris, and if the applicable Business Day relates to an advance of all or part of the Loan, an Interest Period, prepayment or conversion, in each case with respect to the Loan bearing interest by reference to the LIBO Rate, a day on which dealings in deposits in Dollars are carried on in the London interbank market.
CAFFIL means Caisse Française de Financement Local, a French société anonyme, with its registered office at 1-3 rue du Passeur de Boulogne, 92130 Issy-les-Moulineaux, France, registered at the trade and companies registry of Nanterre under number 421 318 064.
Capital Lease Obligations means obligations of the Borrower or any Subsidiary of the Borrower under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalized leases.
Capitalization means, at any date, the sum of (a) Net Debt on such date, plus (b) Stockholders Equity on such date.
Capitalized Lease Liabilities means the principal portion of all monetary obligations of the Borrower or any of its Subsidiaries under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalized leases, and, for purposes of this Agreement and each other Loan Document, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.
Cash Equivalents means all amounts other than cash that are included in the cash and cash equivalents shown on the Borrowers balance sheet prepared in accordance with GAAP.
Change of Control means an event or series of events by which (a) any person or group (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have beneficial ownership of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an option right)), directly or indirectly, of 50% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or (b) during any period of 24 consecutive months, a majority of the members of the board of directors or other
equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
CIRR means 2.93% per annum being the Commercial Interest Reference Rate determined in accordance with the OECD Arrangement for Officially Supported Export Credits to be applicable to the Loan hereunder.
Citibank means Citibank N.A., London Branch.
Code means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.
Commitment is defined in Section 2.2 and means, relative to any Lender, such Lenders obligation to make the Loan pursuant to Section 2.1.
Commitment Fees is defined in Section 3.4.
Commitment Fee Termination Date is defined in Section 3.4.
Commitment Termination Date means the Back Stop Date (as defined in the Receivable Purchase Agreement) (or such later date as the Lenders and BpiFAE may agree).
Construction Contract is defined in the preamble.
Contract Price is as defined in the Construction Contract and which includes a lump sum amount in respect of the Non-Yard Costs.
Contractual Delivery Date means, at any time, the date which at such time is the date specified for delivery of the Purchased Vessel under the Construction Contract, as such date may be modified from time to time pursuant to the terms of the Construction Contract.
Covered Taxes is defined in Section 4.6.
Default means any Event of Default or any condition, occurrence or event which, after notice or lapse of time or both, would constitute an Event of Default.
Delivery Non-Yard Costs Certificate means the certificate to be provided to the Facility Agent in the form of Exhibit E-1 on or prior to the Actual Delivery Date certifying the amount in EUR of the Paid Non-Yard Costs and the Unpaid Non-Yard Costs as at the Actual Delivery Date, duly signed by the Borrower and endorsed by the Builder.
Dollar and the sign $ mean lawful money of the United States.
ECA Agent is defined in the preamble.
EEA Financial Institution means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Effective Date means the date this Agreement becomes effective pursuant to Section 11.8.
Effective Time means the Novation Effective Time as defined in the Novation Agreement.
Environmental Laws means all applicable federal, state, local or foreign statutes, laws, ordinances, codes, rules and regulations (including consent decrees and administrative orders) relating to the protection of the environment.
Escrow Account means the Dollar escrow account of the Borrower opened or to be opened with the Escrow Account Bank for the purpose of receiving the relevant amount of the Additional Advances in respect of Unpaid Non-Yard Costs in accordance with Section 2.3f).
Escrow Account Bank means Citibank N.A., London Branch of Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB.
Escrow Account Security means the account security in respect of the Escrow Account executed or, as the context may require, to be executed by the Borrower in favour of the Security Trustee in the form agreed by the Lenders and the Borrower on or about the Restatement Date.
EU Bail-In Legislation Schedule means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
EUR and the sign mean the currency of participating member states of the European Monetary Union pursuant to Council Regulation (EC) 974/98 of 3 May 1998, as amended from time to time.
Event of Default is defined in Section 8.1.
Existing Principal Subsidiaries means each Subsidiary of the Borrower that is a Principal Subsidiary on the Signing Date.
Facility Agent is defined in the preamble and includes each other Person as shall have subsequently been appointed as the successor Facility Agent, and as shall have accepted such appointment, pursuant to Section 10.5.
FATCA means (a) Sections 1471 through 1474 of the Code, as in effect at the date hereof, and any current or future regulations promulgated thereunder or official interpretations thereof, (b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or (c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
FATCA Deduction means a deduction or withholding from a payment under a Loan Document required by FATCA.
FATCA Exempt Party means a party to this Agreement that is entitled to receive payments free from any FATCA Deduction.
Fee Letter means any letter entered into by reference to this Agreement between any or all of the Facility Agent, the Mandated Lead Arrangers, the Arrangers, the Lenders and/or the Borrower setting out the amount of certain fees referred to in, or payable in connection with, this Agreement.
Final Maturity means twelve (12) years after the Actual Delivery Date.
Final Non-Yard Costs Certificate means the certificate to be provided to the Facility Agent in the form of Exhibit E-2 on or prior to the NYC Cut Off Date certifying the amount in Euro of the Paid Non-Yard Costs as at the date of that certificate, duly signed by the Borrower.
Fiscal Quarter means any quarter of a Fiscal Year.
Fiscal Year means any annual fiscal reporting period of the Borrower.
Fixed Charge Coverage Ratio means, as of the end of any Fiscal Quarter, the ratio computed for the period of four consecutive Fiscal Quarters ending on the close of such Fiscal Quarter of:
a) net cash from operating activities (determined in accordance with GAAP) for such period, as shown in the Borrowers consolidated statement of cash flow for such period, to
b) the sum of:
i) dividends actually paid by the Borrower during such period (including, without limitation, dividends in respect of preferred stock of the Borrower); plus
ii) scheduled payments of principal of all debt less New Financings (determined in accordance with GAAP, but in any event including Capitalized Lease Liabilities) of the Borrower and its Subsidiaries for such period.
Fixed Rate means a rate per annum equal to the sum of the CIRR plus the Fixed Rate Margin.
Fixed Rate Margin means 0.295% per annum.
Floating Rate means a rate per annum equal to the sum of the LIBO Rate plus the Floating Rate Margin.
Floating Rate Margin means, for each Interest Period 0.90% per annum.
F.R.S. Board means the Board of Governors of the Federal Reserve System or any successor thereto.
French Authorities means the Direction Générale du Trésor of the French Ministry of Economy and Finance, any successors thereto, or any other governmental authority in or of France involved in the provision, management or regulation of the terms, conditions and issuance of export credits including, among others, such entities to whom authority in respect of the extension or administration of export financing matters have been delegated, such as BpiFAE and Natixis DAI.
Funding Losses Event is defined in Section 4.4.1.
GAAP is defined in Section 1.4.
Government-related Obligations means obligations of the Borrower or any Subsidiary of the Borrower under, or Indebtedness incurred by the Borrower or any Subsidiary of the Borrower to satisfy obligations under, any governmental requirement imposed by any Applicable Jurisdiction that must be complied with to enable the Borrower and its Subsidiaries to continue their business in such Applicable Jurisdiction, excluding, in any event, any taxes imposed on the Borrower or any Subsidiary of the Borrower.
Hedging Instruments means options, caps, floors, collars, swaps, forwards, futures and any other agreements, options or instruments substantially similar thereto or any series or combination thereof used to hedge interest, foreign currency and commodity exposures.
herein, hereof, hereto, hereunder and similar terms contained in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular Section, paragraph or provision of this Agreement or such other Loan Document.
Historic Screen Rate means, in relation to the Loan, the most applicable recent rate which appeared on Thomson Reuters LIBOR 01 Page (or any similar page) for the currency of the Loan and for a period equal to the applicable Interest Period for the Loan and which is no more than 7 days before the commencement of the applicable Interest Period for which such rate may be applicable.
Illegality Notice is defined in Section 3.2(b).
Indebtedness means, for any Person: (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of property or services, other than (i) trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within 180 days of the date the respective goods are delivered or the respective services are rendered and (ii) any purchase price adjustment, earnout or deferred payment of a similar nature incurred in connection with an acquisition (but only to the extent that no payment has at the time accrued pursuant to such purchase price adjustment, earnout or deferred payment obligation; (c) Indebtedness of others secured by a Lien on the property of such Person, whether or not the respective indebtedness so secured has been assumed by such Person; (d) obligations of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for the account of such Person; (e) Capital Lease Obligations of such Person; (f) guarantees by such Person of Indebtedness of others, up to the amount of Indebtedness so guaranteed; (g) obligations of such Person in respect of surety bonds and similar obligations; and (h) liabilities arising under Hedging Instruments.
Indemnified Liabilities is defined in Section 11.4.
Indemnified Parties is defined in Section 11.4.
Interest Payment Date means each Repayment Date.
Interest Period means the period between the Actual Delivery Date and the first Repayment Date, and subsequently each succeeding period between two consecutive Repayment Dates.
Interest Stabilisation Agreement means an agreement on interest stabilisation entered into between Natixis and each Lender (other than BpiFAE or CAFFIL as assignee of all or any of SFILs rights as Lender following the enforcement of any security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, subject as provided in Section 11.11.1) in connection with the Loan.
Investment Grade means, with respect to Moodys, a Senior Debt Rating of Baa3 or better and, with respect to S&P, a Senior Debt Rating of BBB- or better.
Lender Assignment Agreement means any Lender Assignment Agreement substantially in the form of Exhibit C.
Lender and Lenders are defined in the preamble.
Lending Office means, relative to any Lender, the office of such Lender designated as such below its signature hereto or designated in a Lender Assignment Agreement or such other office of a Lender as designated from time to time by notice from such Lender to the Borrower and the Facility Agent, whether or not outside the United States but subject in all
cases to the agreement of Natixis DAI in relation to the CIRR, which shall be making or maintaining the Loan of such Lender hereunder.
LIBO Rate means the rate per annum of the offered quotation for deposits in Dollars for six months (or for such other period as shall be agreed by the Borrower and the Facility Agent) which appears on Thomson Reuters LIBOR01 Page (or any successor page) at or about 11:00 a.m. (London time) two (2) Business Days before the commencement of the relevant Interest Period; provided that:
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.
Lien means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in property to secure payment of a debt or performance of an obligation or other priority or preferential arrangement of any kind or nature whatsoever.
Lien Basket Amount is defined in Section 7.2.3 b).
Loan means the advances made by the Lenders under this Agreement from time to time or, as the case may be, the aggregate outstanding amount of such advances from time to time.
Loan Documents means this Agreement, the Novation Agreement, the Fee Letters and the Escrow Account Security.
Loan Request means the loan request and certificate duly executed by an Authorized Officer of the Borrower, substantially in the form of Exhibit A hereto.
Material Adverse Effect means a material adverse effect on (a) the business, operations or financial condition of the Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies of the Facility Agent or any Lender under the Loan Documents or (c) the ability of the Borrower to perform its payment Obligations under the Loan Documents.
Material Litigation is defined in Section 6.7.
Maximum Loan Amount is defined in the preamble.
Moodys means Moodys Investors Service, Inc.
Natixis means Natixis, a French société anonyme with its registered office at 30, avenue Pierre Mendès France, 75013 Paris, France, registered with the Paris Commercial and Companies Registry under number 542 044 524 RCS Paris.
Natixis DAI means Natixis DAI Direction des Activités Institutionnelles.
Net Debt means, at any time, the aggregate outstanding principal amount of all debt (including, without limitation, the principal portion of all capitalized leases) of the Borrower and its Subsidiaries (determined on a consolidated basis in accordance with GAAP) less the sum of (without duplication);
a) all cash on hand of the Borrower and its Subsidiaries; plus
b) all Cash Equivalents.
Net Debt to Capitalization Ratio means, as at any date, the ratio of (a) Net Debt on such date to (b) Capitalization on such date.
New Financings means proceeds from:
a) borrowed money (whether by loan or issuance and sale of debt securities), including drawings under this Agreement and any revolving credit facilities of the Borrower, and
b) the issuance and sale of equity securities.
Non-Yard Costs has the meaning assigned to NYC Allowance in Article II.1 of the Construction Contract and, when such expression is prefaced by the word incurred, shall mean such amount of the Non-Yard Costs, not exceeding EUR76,000,000 and when aggregated with the Other Basic Contract Price Increases in an amount not exceeding EUR68,300,000, as shall at the relevant time have been paid, or become payable, to the Builder by the Borrower under the Construction Contract as part of the Contract Price.
Nordea Agreement means the U.S. $1,150,000,000 amended and restated credit agreement dated as of October 12, 2017, among the Borrower, as the borrower, the various financial institutions as are or shall become parties thereto and Nordea Bank AB (publ), New York Branch as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
Novated Loan Balance is as defined in the Novation Agreement.
Novation Agreement means the novation agreement dated 22 June 2016 (as amended) and made between the Original Borrower and the parties hereto pursuant to which (amongst other things) this Agreement was novated, amended and restated.
NYC Cut Off Date means the date falling 60 days after the Actual Delivery Date or such later date as the Lenders (with the approval of BpiFAE) may agree.
Obligations means all obligations (payment or otherwise) of the Borrower arising under or in connection with this Agreement.
Option Period is defined in Section 3.2(c).
Organic Document means, relative to the Borrower, its articles of incorporation (inclusive of any articles of amendment to its articles of incorporation) and its by-laws.
Original Borrower means Azairemia Finance Limited of Cayman Corporate Centre, 27 Hospital Road, George Town, Grand Cayman KY1-9008, Cayman Islands.
Other Basic Contract Price Increases is defined in the Novation Agreement.
Paid Non-Yard Costs means as at any relevant date, the amount in Euro of the Non-Yard Costs which have been paid for by the Borrower and, where applicable, supplied, installed and completed on the Purchased Vessel and as determined in accordance with the relevant amounts certified in the Delivery Non-Yard Costs Certificate or, as the case may be, the Final Non-Yard Costs Certificate as at such time.
Participant is defined in Section 11.11.2.
Participant Register is defined in Section 11.11.2.
Percentage means, relative to any Lender, the percentage set forth opposite its signature hereto or as set out in the applicable Lender Assignment Agreement, as such percentage may be adjusted from time to time pursuant to Section 4.9 or pursuant to Lender Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered pursuant to Section 11.11.1.
Person means any natural person, corporation, limited liability company, partnership, firm, association, trust, government, governmental agency or any other entity, whether acting in an individual, fiduciary or other capacity.
Prepayment Event is defined in Section 9.1.
Principal Subsidiary means any Subsidiary of the Borrower that owns a Vessel.
Purchased Vessel is defined in the preamble.
Receivable Purchase Agreement is as defined in the Novation Agreement.
Reference Banks means Société Générale and Sumitomo Mitsui Banking Corporation Europe Limited, Paris Branch and such other Lender as shall be so named by the Borrower and agrees to serve in such role and each additional Reference Bank and/or each replacement Reference Bank appointed by the Facility Agent pursuant to Section 3.3.6.
Register is defined in Section 11.11.3.
Repayment Date means, subject to Section 4.8(c), each of the dates for payment of the repayment installments of the Loan pursuant to Section 3.1.
Required Lenders means, at any time, Lenders that in the aggregate, hold more than 50% of the aggregate unpaid principal amount of the Loan or, if no such principal amount is then outstanding, Lenders that in the aggregate have more than 50% of the Commitments.
Restatement Date means 5 October 2018, being the date on which the form of this Agreement was amended and restated.
S&P means Standard & Poors Financial Services LLC, a wholly-owned subsidiary of The McGraw-Hill Financial Inc.
Sanctions means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or Her Majestys Treasury of the United Kingdom.
Sanctioned Country means, at any time, a country, region or territory which is itself the subject or target of any Sanctions.
Sanctioned Person means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union or any European Union member state, or any person owned or controlled by any such Person or Persons, or (b) any Person operating, organized or resident in a Sanctioned Country.
SEC means the United States Securities and Exchange Commission and any successor thereto.
Security Trustee means Citicorp Trustee Company Limited of Citigroup Centre, Canada Square, London E14 5LB in its capacity as security trustee for the purpose of the Escrow Account Security.
Senior Debt Rating means, as of any date, (a) the implied senior debt rating of the Borrower for debt pari passu in right of payment and in right of collateral security with the Obligations as given by Moodys and S&P or (b) in the event the Borrower receives an actual unsecured senior debt rating (apart from an implied rating) from Moodys and/or S&P, such actual rating or ratings, as the case may be (and in such case the Senior Debt Rating shall not be determined by reference to any implied senior debt rating from either agency).
SFIL means SFIL, a French société anonyme with is registered office at 1-3 rue du Passeur de Boulogne, 92130 Issy-les-Moulineaux, France, registered at the trade and companies registry of Nanterre under number 428 782 585.
Signing Date means the date of the Novation Agreement.
Spot Rate of Exchange means, for the purposes of determining an equivalent amount in EUR of Dollars on any relevant date, the FX Rate EUR/USD (published on the basis of the 1:00pm London BFIX rate) two (2) Business Days before that date.
Steel Price Adjustment Excess is as defined in the Novation Agreement.
Stockholders Equity means, as at any date, the Borrowers stockholders equity on such date, excluding Accumulated Other Comprehensive Income (Loss), determined in accordance with GAAP, provided that any non-cash charge to Stockholders Equity resulting (directly or indirectly) from a change after the Signing Date in GAAP or in the interpretation thereof shall be disregarded in the computation of Stockholders Equity such that the amount of any reduction thereof resulting from such change shall be added back to Stockholders Equity.
Subsidiary means, with respect to any Person, any corporation of which more than 50% of the outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned by such Person, by such Person and one or more other Subsidiaries of such Person, or by one or more other Subsidiaries of such Person.
Unpaid Non-Yard Costs means, as at the Actual Delivery Date, the amount in Euro of the Non-Yard Costs which have not been paid for by the Borrower and/or where applicable, supplied, installed and completed on the Purchased Vessel as at the Actual Delivery Date and as determined in accordance with the relevant amounts certified in the Delivery Non-Yard Costs Certificate.
US Dollar Equivalent means (i) for all EUR amounts payable in respect of the Additional Advances for the amount of the Non-Yard Costs or the Other Basic Contract Price Increases referred to in clause 5.2(a) of the Novation Agreement or the Steel Price Adjustment Excess referred to in clause 5.2(b) of the Novation Agreement (and disregarding for the purposes of this definition that the Additional Advance in respect of such amounts shall be drawn in Dollars), such EUR amounts converted to a corresponding Dollar amount at the Weighted Average Rate of Exchange and (ii) for the EUR amount payable in respect of the Additional Advance for the BpiFAE Premium referred to in clause 5.2(c) of the Novation Agreement, and for the calculation and payment of the Novated Loan Balance (as defined in the Novation Agreement), the amount thereof in EUR converted to a corresponding Dollar amount as determined by the Facility Agent on the basis of the Spot Rate of Exchange. The US Dollar Equivalent of the Maximum Loan Amount shall be calculated by the Borrower in consultation with the Facility Agent no less than two (2) Business Days prior to the proposed Actual Delivery Date.
United States or U.S. means the United States of America, its fifty States and the District of Columbia.
Vessel means a passenger cruise vessel owned by the Borrower or one of its Subsidiaries.
Weighted Average Rate of Exchange means the weighted average rate of exchange that the Borrower has agreed, either in the spot or forward currency markets, to pay its counterparties for the purchase of the relevant amounts of euro with Dollars for the payment of the euro amount of the Contract Price (including the portion thereof comprising the change orders, any Other Basic Contract Price Increases, the Steel Price Adjustment Excess and the Non-Yard Costs) and including in such weighted average calculation (a) the NYC Applicable Rate (as defined in the Novation Agreement) in relation to the portion of the Contract Price comprising the Non-Yard Costs and (b) the spot rates for any other euro amounts that have not been hedged by the Borrower.
Write-Down and Conversion Powers means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context otherwise requires, terms for which meanings are provided in this Agreement shall, when capitalized, have such meanings when used in the Loan Request and each notice and other communication delivered from time to time in connection with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references in this Agreement and in each other Loan Document to any Article or Section are references to such Article or Section of this Agreement or such other Loan Document, as the case may be, and, unless otherwise specified, references in any Article, Section or definition to any clause are references to such clause of such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise specified, all accounting terms used herein or in any other Loan Document shall be interpreted, all accounting determinations and computations hereunder or thereunder (including under Section 7.2.4) shall be made, and all financial statements required to be delivered hereunder or thereunder shall be prepared, in accordance with United States generally accepted accounting principles (GAAP) consistently applied (or, if not consistently applied, accompanied by details of the inconsistencies); provided that if the Borrower elects to apply or is required to apply International Financial Reporting Standards (IFRS) accounting principles in lieu of GAAP, upon any such election and notice to the Facility Agent, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Agreement); provided further that if, as a result of (i) any change in GAAP or IFRS or in the interpretation thereof or (ii) the application by the Borrower of IFRS in lieu of GAAP, in each case, after the date of the financial statements referred to in Section 6.15, there is a change in the manner of determining any of the items referred to herein or thereunder that are to be determined by reference to GAAP, and the effect of such change would (in the reasonable opinion of the Borrower or the Facility Agent) be such as to affect the basis or efficacy of the financial covenants contained in Section 7.2.4 in ascertaining the consolidated financial condition of the Borrower and its Subsidiaries and the Borrower notifies the Facility Agent that the Borrower requests an amendment to any provision hereof to eliminate such change occurring after the date hereof in GAAP or the application thereof on the operation of such provision (or if the Facility Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such
purpose), then such item shall for the purposes of Section 7.2.4 continue to be determined in accordance with GAAP relating thereto as if GAAP were applied immediately prior to such change in GAAP or in the interpretation thereof until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding the foregoing, all obligations of any person that are or would be characterized as operating lease obligations in accordance with GAAP on the Restatement Date (whether or not such operating lease obligations were in effect on such date) shall continue to be accounted for as operating lease obligations for the purposes of this Agreement regardless of any change in GAAP following the Restatement Date that would otherwise require such obligations to be recharacterized (on a prospective or retroactive basis or otherwise) as capital leases.
ARTICLE II
COMMITMENTS AND BORROWING PROCEDURES
SECTION 2.1. Commitment. On the terms and subject to the conditions of this Agreement (including Article V), each Lender severally agrees to make its portion of the Loan pursuant to its Commitment described in Section 2.2. No Lenders obligation to make its portion of the Loan shall be affected by any other Lenders failure to make its portion of the Loan.
SECTION 2.2. Commitment of the Lenders; Termination and Reduction of Commitments.
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 Lenders 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 Lenders 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 Lenders 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.
SECTION 2.3. Borrowing Procedure.
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 4:00 p.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 Lenders 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 (and having regard, where applicable, to Sections 2.3 d), e) and f) below), 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 BpiFAE 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 BpiFAE Advance Amount) that will fund the BpiFAE Premium shall be equal to the Dollar amount that corresponds to the EUR amount of the BpiFAE 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 BpiFAE Advance Amount on the date such Loan Request is delivered, and the Lenders shall deposit such US Dollar BpiFAE 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 BpiFAE Advance Amount. If the Borrower elects to so finance the BpiFAE Premium, the Borrower will be deemed to have directed the Facility Agent to pay over directly to BpiFAE on behalf of the Borrower that portion of the EUR amount of the BpiFAE 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 BpiFAE Advance Amount attributable to the BpiFAE Premium paid by the Facility Agent to BpiFAE on behalf of the Borrower.
e) If the Borrower elects to finance that part of the BpiFAE 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 BpiFAE Balance Amount) that will fund the BpiFAE Premium shall be equal to the Dollar amount that corresponds to the EUR
amount of the BpiFAE 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 BpiFAE Balance Amount on the date such Loan Request is delivered, and the Lenders shall deposit such US Dollar BpiFAE Balance 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 BpiFAE Balance Amount. If the Borrower elects to so finance the BpiFAE Premium and receive the proceeds in EUR, the Borrower will be deemed to have directed the Facility Agent to pay over to the Borrower or, if the Borrower so requires in a Loan Request, directly to the Builder on behalf of the Borrower that portion of the EUR amount of the BpiFAE 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 US Dollar BpiFAE Balance Amount.
f) In relation to any Additional Advance that is to be advanced to the Borrower in respect of the Non-Yard Costs it is agreed that:
i) an amount equal to the US Dollar Equivalent of eighty per cent (80%) of the Paid Non-Yard Costs shall be advanced to the Borrower on the Actual Delivery Date in accordance with the provisions of Section 2.3 c), which amount shall be determined by the Facility Agent based on the amounts contained in the Delivery Non-Yard Costs Certificate; and
ii) an amount equal to the US Dollar Equivalent of eighty per cent (80%) of the Unpaid Non-Yard Costs, which amount shall be determined by the Facility Agent based on the amounts contained in the Delivery Non-Yard Costs Certificate (the Escrow Amount), shall be remitted by the Facility Agent (and the Borrower hereby instructs the Facility Agent to make such remittance) to the Escrow Account and such amount shall be regulated in accordance with the following provisions of this Section 2.3 f) and the Escrow Account Security,
subject to the aggregate of the amounts referred to in i) and ii) above not exceeding the Maximum Non-Yard Costs Amount.
Where an Escrow Amount payment is made to the Escrow Account pursuant to ii) above, the Borrower shall be entitled at any time prior to the NYC Cut Off Date to provide the Facility Agent with the Final Non-Yard Cost Certificate setting out the final amount of the Paid Non-Yard Costs. Where the Final Non-Yard Costs Certificate is so received by the Facility Agent, the Facility Agent shall determine promptly the final EUR amount of the Paid Non-Yard Costs based on the amounts contained in the Final Non-Yard Costs Certificate and the US Dollar Equivalent of such EUR amount and within one Business Day thereafter shall authorize the release of the Escrow Amount (or, if less, an amount equal to the US Dollar Equivalent of eighty per cent of the Final Paid Non-Yard Costs (as determined above) less the amount previously advanced to the Borrower under i) above) to the Borrower. Any interest accruing on the Escrow Account shall be released to the Borrower at the same
time as the release of the Escrow Amount (or, if applicable, part thereof) to the Borrower pursuant to this provision.
If any amount of the Escrow Amount remains on the Escrow Account on the day falling immediately after the NYC Cut Off Date (having regard to any applicable permitted release of moneys from the Escrow Account to the Borrower referred to above) then on the Business Day thereafter the Facility Agent shall be entitled to request the withdrawal of that amount from the Escrow Account and shall apply the amount so received, on behalf of the Borrower, in or towards prepayment of the Loan.
The basis on which the Escrow Account Security is held by the Security Trustee for the benefit of the Lenders is regulated under the agency and trust deed dated 22 June 2016 (as amended and restated and as acceded to by the Borrower) between the parties to this Agreement and the Security Trustee.
SECTION 2.4. Funding. Each Lender may, if it so elects, fulfill its obligation to make or continue its portion of the Loan hereunder by causing a branch or Affiliate (or an international banking facility created by such Lender) other than that indicated next to its signature to this Agreement or, as the case may be, in the relevant Lender Assignment Agreement, to make or maintain such portion of the Loan; provided that such portion of the Loan shall nonetheless be deemed to have been made and to be held by such Lender, and the obligation of the Borrower to repay such portion of the Loan shall nevertheless be to such Lender for the account of such foreign branch, Affiliate or international banking facility; provided, further, that 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 the Lender not caused such branch or Affiliate (or international banking facility) to make or maintain such portion of the Loan.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments.
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.
SECTION 3.2. Prepayment.
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 BpiFAE 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).
Each prepayment of the Loan made pursuant to this Section shall be without premium or penalty, except as may be required by Section 4.4. No amounts prepaid by the Borrower may be re-borrowed under the terms of this Agreement.
SECTION 3.3. Interest Provisions. Interest on the outstanding principal amount of the Loan shall accrue and be payable in accordance with this Section 3.3.
SECTION 3.3.1. Rates. The Loan shall accrue interest from the Actual Delivery Date to the date of repayment or prepayment of the Loan in full to the Lenders at the Fixed Rate or, where the proviso to Section 5.1.10 applies, the Floating Rate. Interest calculated at the Fixed Rate or the Floating Rate shall be payable semi-annually in arrears on each Repayment Date. The Loan shall bear interest from and including the first day of the applicable Interest Period to (but not including) the last day of such Interest Period at the interest rate determined as applicable to the Loan. All interest shall be calculated on the basis of the actual number of days elapsed over a year comprised of 360 days.
SECTION 3.3.2. [Intentionally omitted]
SECTION 3.3.3. Interest stabilisation. Each Lender who is a party hereto on the Restatement Date represents and warrants to the Borrower that it has entered into an Interest Stabilisation Agreement and any Lender not a party hereto on the Restatement Date (other than BpiFAE or CAFFIL as assignee of all or any of SFILs rights as Lender following the enforcement of the security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, subject as provided in Section 11.11.1(iv))represents and warrants to the Borrower on the date that such Lender becomes a party hereto that it has entered into an Interest Stabilisation Agreement on or prior to becoming a party hereto.
SECTION 3.3.4. Post-Maturity Rates. After the date any principal amount of the Loan is due and payable (whether on any Repayment Date, upon acceleration or otherwise), or after any other monetary Obligation of the Borrower shall have become due and payable, the Borrower shall pay, but only to the extent permitted by law, interest (after as well as before judgment) on such amounts for each day during the period of such default at a rate per annum certified by the Facility Agent to the Borrower (which certification shall be conclusive in the absence of manifest error) to be equal to the sum of the Floating Rate plus 1.5% per annum.
SECTION 3.3.5. Payment Dates. Interest accrued on the Loan shall be payable, without duplication, on the earliest of:
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.
SECTION 3.3.6. Interest Rate Determination; Replacement Reference Banks. Where Section 3.3.4 or the Floating Rate applies, the Facility Agent shall obtain from each Reference Bank timely information for the purpose of determining the LIBO Rate in the event that no offered quotation appears on Thomson Reuters LIBOR01 Page (or any successor page) and the LIBO Rate is to be determined by reference to quotations supplied by the Reference Banks and not by reference to the Historic Screen Rate. If any one or more of the Reference Banks shall fail to furnish in a timely manner such information to the Facility Agent for any such interest rate, the Facility Agent shall determine such interest rate on the basis of the information furnished by the remaining Reference Banks. If the Borrower elects to add an additional Reference Bank hereunder or a Reference Bank ceases for any reason to be able and willing to act as such, the Facility Agent shall, at the direction of the Required Lenders and after consultation with the Borrower and the Lenders, appoint a replacement for such Reference Bank reasonably acceptable to the Borrower, and such replaced Reference Bank shall cease to be a Reference Bank hereunder. The Facility Agent shall furnish to the Borrower and to the Lenders each determination of the LIBO Rate made by reference to quotations of interest rates furnished by Reference Banks (it being understood that the Facility Agent shall not be required to disclose to any party hereto (other than the Borrower) any information regarding any Reference Bank or any rate quoted by a Reference Bank, including, without limitation, whether a Reference Bank has provided a rate or the rate provided by any individual Reference Bank).
Interest accrued on the Loan or other monetary Obligations arising under this Agreement or any other Loan Document after the date such amount is due and payable (whether upon acceleration or otherwise) shall be payable upon demand.
SECTION 3.4. Commitment Fees. Subject to clause 10.1 of the Novation Agreement, the Borrower agrees to pay to the Facility Agent for the account of each Lender a commitment fee (the Commitment Fee) on its daily unused portion of Maximum Loan Amount (as such amount may be adjusted from time to time), for the period commencing on the Signing Date and continuing through the earliest to occur (the Commitment Fee Termination Date) of (i) the Actual Delivery Date, (ii) the date upon which the Facility Agent has provided the Borrower with written notice that the Lenders will not advance the Loan because the Commitments have been terminated pursuant to Section 8.2 or 8.3, (iii) the Commitment Termination Date and (iv) the date the Commitments shall have been terminated in full pursuant to clause 10.2 of the Novation Agreement.
SECTION 3.4.1. Payment. The Commitment Fee shall be payable by the Borrower to the Facility Agent for the account of each Lender six-monthly in arrears, with the first such payment (the First Commitment Fee Payment) to be made on the day falling six months following the Signing Date and the final such payment to be made on the Commitment Fee Termination Date (each date on which a Commitment Fee payment is required to be made in accordance with this Section 3.4.1 referred to herein as a Commitment Fee Payment Date). The Commitment Fee shall be in the amount in EUR equal to the product of the Applicable Commitment Rate, multiplied by, for each day elapsed since the preceding Commitment Fee Payment Date (or, in the case of the First Commitment Fee Payment, the Signing Date), 75% of the Maximum Loan Amount, divided by 360 days.
SECTION 3.5. Other Fees. The Borrower agrees to pay to the Facility Agent the agreed-upon fees set forth in the Fee Letters on the dates and in the amounts set forth therein.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If after the Signing Date the introduction of or any change in or in the interpretation of any law makes it unlawful, or any central bank or other governmental authority having jurisdiction over such Lender asserts that it is unlawful for such Lender to make, continue or maintain its portion of the Loan where the relevant Lender has funded itself in the interbank market at a rate based on the LIBO Rate, the obligation of such Lender to make, continue or maintain its portion of the Loan shall, upon notice thereof to the Borrower, the Facility Agent and each other Lender, forthwith be suspended until the circumstances causing such suspension no longer exist, provided that such Lenders obligation to make, continue and maintain its portion of the Loan hereunder shall be automatically converted into an obligation to make, continue and maintain its portion of the Loan bearing interest at a rate to be negotiated between such Lender and the Borrower that is the equivalent of the sum of the LIBO Rate for the relevant Interest Period plus the Floating Rate Margin.
SECTION 4.2. Deposits Unavailable. If any Lender has funded itself in the interbank market and the Facility Agent shall have determined that:
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 Lenders cost of obtaining matching deposits on the date such Lender becomes a Lender hereunder less the LIBO Rate on such date),
then the Facility Agent shall give notice of such determination (hereinafter called a Determination Notice) to the Borrower and each of the Lenders. The Borrower, the Lenders and the Facility Agent shall then negotiate in good faith in order to agree upon a mutually satisfactory interest rate and interest period (or interest periods) to be substituted for those which would otherwise have applied under this Agreement. If the Borrower, the Lenders and the Facility Agent are unable to agree upon an interest rate (or rates) and interest period (or interest periods) prior to the date occurring fifteen (15) Business Days after the giving of such Determination Notice, the Facility Agent shall (after consultation with the Lenders) set an interest rate and an interest period (or interest periods), in each case to take
effect at the end of the Interest Period current at the date of the Determination Notice, which rate (or rates) shall be equal to the sum of the Floating Rate Margin and the weighted average of the corresponding interest rates at or about 11:00 a.m. (London time) two (2) Business Days before the commencement of the relevant Interest Period on Thomson Reuters pages KLIEMMM, GARBIC01 and FINA01 (or such other pages as may replace Thomson Reuters pages KLIEMMM, GARBIC01 or FINA01 on Thomson Reuters service) (or, in the case of clause (c) above, the lesser of (x) the respective cost to the Lenders of funding the respective portions of the Loan held by the Lenders and (y) such weighted average). The Facility Agent shall furnish a certificate to the Borrower as soon as reasonably practicable after the Facility Agent has given such Determination Notice setting forth such rate(s). In the event that the circumstances described in this Section 4.2 shall extend beyond the end of an interest period agreed or set pursuant hereto, the foregoing procedure shall be repeated as often as may be necessary.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. If after the Signing Date a change in any applicable treaty, law, regulation or regulatory requirement or in the interpretation thereof or in its application to the Borrower, or if compliance by any Lender with any applicable direction, request, requirement or guideline (whether or not having the force of law) of any governmental or other authority including, without limitation, any agency of the European Union or similar monetary or multinational authority insofar as it may be changed or imposed after the date hereof, shall:
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,
and the result of any of the foregoing is either (i) to increase the cost to such Lender of making its portion of the Loan or maintaining its portion of the Loan or any part thereof, (ii)
to reduce the amount of any payment received by such Lender or its effective return hereunder or on its capital or (iii) to cause such Lender to make any payment or to forego any return based on any amount received or receivable by such Lender hereunder, then and in any such case if such increase or reduction in the opinion of such Lender materially affects the interests of such Lender, (A) such Lender shall (through the Facility Agent) notify the Borrower of the occurrence of such event and use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to designate a different Lending Office if the making of such a designation would avoid the effects of such law, regulation or regulatory requirement or any change therein or in the interpretation thereof and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (B) the Borrower shall forthwith upon such demand pay to the Facility Agent for the account of such Lender such amount as is necessary to compensate such Lender for such additional cost or such reduction and ancillary expenses, including taxes, incurred as a result of such adjustment. Such notice shall (i) describe in reasonable detail the event leading to such additional cost, together with the approximate date of the effectiveness thereof, (ii) set forth the amount of such additional cost, (iii) describe the manner in which such amount has been calculated, (iv) certify that the method used to calculate such amount is such Lenders standard method of calculating such amount, (v) certify that such request is consistent with its treatment of other borrowers that are subject to similar provisions, and (vi) certify that, to the best of its knowledge, such change in circumstance is of general application to the commercial banking industry in such Lenders jurisdiction of organization or in the relevant jurisdiction in which such Lender does business. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lenders right to demand such compensation; provided that in relation to increased costs or reductions arising after the Effective Date the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such increased costs or reductions and of such Lenders intention to claim compensation therefor; provided further that, if the circumstance giving rise to such increased costs or reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof, but not more than six months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such cost or reductions and of such Lenders intention to claim compensation therefor.
It is acknowledged that the Borrower shall have no liability to compensate any Lender under this Section for amounts of increased costs that accrue before the Effective Time on the Actual Delivery Date (with any such amounts arising before the Effective Time being the responsibility of the Original Borrower).
SECTION 4.4. Funding Losses.
SECTION 4.4.1. Indemnity. In the event any Lender shall incur any loss or expense (for the avoidance of doubt excluding loss of profit) by reason of the liquidation or re-employment (at not less than the market rate) of deposits or other funds acquired by such Lender, to make, continue or maintain any portion of the principal amount of its portion of the Loan as a result of:
i) any repayment or prepayment or acceleration of the principal amount of such Lenders 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 acceleration on a date other than the scheduled last day of an Interest Period or otherwise scheduled date for repayment or payment; 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 Funding Losses Event) then, upon the written notice of such Lender to the Borrower (with a copy to the Facility Agent), the Borrower shall, within three (3) days of its receipt thereof:
a) if at that time interest is calculated at the Floating Rate on such Lenders 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,
exceeds:
(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 Lenders 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.
Such written notice shall include calculations in reasonable detail setting forth the loss or expense to such Lender.
SECTION 4.4.2. Exclusion In the event that a Lenders wilful misconduct or gross negligence has caused the loss or cancellation of the BpiFAE Insurance Policy, the Borrower shall not be liable to indemnify that Lender under Section 4.4.1 for its loss or expense arising due to the occurrence of the Prepayment Event referred to in Section 9.1.9.
SECTION 4.5. Increased Capital Costs. If after the Signing Date any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, regulator or other governmental authority increases the amount of capital required to be maintained by any Lender or any Person controlling such Lender, and the rate of return on its or such controlling Persons capital as a consequence of its Commitment or its portion of the Loan made by such Lender is reduced to a level below that which such Lender or such controlling Person would have achieved but for the occurrence of any such change in circumstance, then, in any such case upon notice from time to time by such Lender to the Borrower, the Borrower shall immediately pay directly to such Lender additional amounts sufficient to compensate such Lender or such controlling Person for such reduction in rate of return. Any such notice shall (i) describe in reasonable detail the capital adequacy requirements which have been imposed, together with the approximate date of the effectiveness thereof, (ii) set forth the amount of such lowered return, (iii) describe the manner in which such amount has been calculated, (iv) certify that the method used to calculate such amount is such Lenders standard method of calculating such amount, (v) certify that such request for such additional amounts is consistent with its treatment of other borrowers that are subject to similar provisions and (vi) certify that, to the best of its knowledge, such change in circumstances is of general application to the commercial banking industry in the jurisdictions in which such Lender does business. In determining such amount, such Lender may use any method of averaging and attribution that it shall, subject to the foregoing sentence, deem applicable. Each Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to designate a different Lending Office if the making of such a designation would avoid such reduction in such rate of return and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lenders right to demand such compensation; provided that in relation to increased costs or reductions arising after the Effective Date the Borrower shall
not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such reductions and of such Lenders intention to claim compensation therefor; provided further that, if the circumstance giving rise to such reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof, but not more than six months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such reductions and of such Lenders intention to claim compensation therefor.
It is acknowledged that the Borrower shall have no liability to compensate any Lender under this Section for reduced returns that accrue before the Effective Time on the Actual Delivery Date (with any compensation liability to the Lenders arising before the Effective Time being the responsibility of the Original Borrower).
SECTION 4.6. Taxes. All payments by the Borrower of principal of, and interest on, the Loan and all other amounts payable hereunder shall be made free and clear of and without deduction for any present or future income, excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or other charges of any nature whatsoever imposed by any taxing authority, but excluding franchise taxes and taxes imposed on or measured by any Lenders net income or receipts of such Lender and franchise taxes imposed in lieu of net income taxes or taxes on receipts, by the jurisdiction under the laws of which such Lender is organized or any political subdivision thereof or the jurisdiction of such Lenders Lending Office or any political subdivision thereof or any other jurisdiction unless such net income taxes are imposed solely as a result of the Borrowers activities in such other jurisdiction, and any taxes imposed under FATCA (such non-excluded items being called Covered Taxes). In the event that any withholding or deduction from any payment to be made by the Borrower hereunder is required in respect of any Covered Taxes pursuant to any applicable law, rule or regulation, then the Borrower will:
a) pay directly to the relevant authority the full amount required to be so withheld or deducted;
b) promptly forward to the Facility Agent an official receipt or other documentation satisfactory to the Facility Agent evidencing such payment to such authority; and
c) pay to the Facility Agent for the account of the Lenders such additional amount or amounts as is necessary to ensure that the net amount actually received by each Lender will equal the full amount such Lender would have received had no such withholding or deduction been required.
Moreover, if any Covered Taxes are directly asserted against the Facility Agent or any Lender with respect to any payment received or paid by the Facility Agent or such Lender hereunder, the Facility Agent or such Lender may pay such Covered Taxes and the Borrower will promptly pay such additional amounts (including any penalties, interest or expenses) as is necessary in order that the net amount received by such person after the payment of such Covered Taxes (including any Covered Taxes on such additional amount) shall equal the amount such person would have received had no such Covered Taxes been asserted.
Any Lender claiming any additional amounts payable pursuant to this Section agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to change the jurisdiction of its Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
If the Borrower fails to pay any Covered Taxes when due to the appropriate taxing authority or fails to remit to the Facility Agent for the account of the respective Lenders the required receipts or other required documentary evidence, the Borrower shall indemnify the Lenders for any incremental withholding Covered Taxes, interest or penalties that may become payable by any Lender as a result of any such failure (so long as such amount did not become payable as a result of the failure of such Lender to provide timely notice to the Borrower of the assertion of a liability related to the payment of Covered Taxes). For purposes of this Section 4.6, a distribution hereunder by the Facility Agent or any Lender to or for the account of any Lender shall be deemed a payment by the Borrower.
If any Lender is entitled to any refund, credit, deduction or other reduction in tax by reason of any payment made by the Borrower in respect of any Covered Tax under this Section 4.6 or by reason of any payment made by the Borrower pursuant to Section 4.3, such Lender shall use reasonable efforts to obtain such refund, credit, deduction or other reduction and, promptly after receipt thereof, will pay to the Borrower such amount (plus any interest received by such Lender in connection with such refund, credit, deduction or reduction) as is equal to the net after-tax value to such Lender of such part of such refund, credit, deduction or reduction as such Lender reasonably determines is allocable to such Covered Tax or such payment (less out-of-pocket expenses incurred by such Lender), provided that no Lender shall be obligated to disclose to the Borrower any information regarding its tax affairs or tax computations.
Each Lender (and each Participant) agrees with the Borrower and the Facility Agent that it will (i) in the case of a Lender or a Participant organized under the laws of a jurisdiction other than the United States (a) provide to the Facility Agent and the Borrower an appropriately executed copy of Internal Revenue Service Form W-8ECI certifying that any payments made to or for the benefit of such Lender or such Participant are effectively connected with a trade or business in the United States (or alternatively, an Internal Revenue Service Form W-8BEN claiming the benefits of a tax treaty, but only if the applicable treaty described in such form provides for a complete exemption from U.S. federal income tax withholding), or any successor form, on or prior to the date hereof (or, in the case of any assignee Lender or Participant, on or prior to the date of the relevant assignment or participation), in each case attached to an Internal Revenue Service Form W-8IMY, if appropriate, (b) notify the Facility Agent and the Borrower if the certifications made on any form provided pursuant to this paragraph are no longer accurate and true in all material respects and (c) without prejudice to its obligations under Section 4.13, provide such other tax forms or other documents as shall be prescribed by applicable law, if any, or as otherwise reasonably requested, to demonstrate, to the extent applicable, that payments to such Lender Party (or Participant) hereunder are exempt from withholding under FATCA, and (ii) in all cases, provide such forms, certificates or other documents, as and when reasonably requested by the Borrower, necessary to claim any applicable exemption from, or reduction of, Covered Taxes or any payments made to or for benefit of such Lender Party or such Participant, provided that the Lender Party or Participant is legally able to deliver such forms, certificates
or other documents. For any period with respect to which a Lender (or assignee Lender or Participant) has failed to provide the Borrower with the foregoing forms (other than if such failure is due to a change in law occurring after the date on which a form originally was required to be provided (which, in the case of an Assignee Lender, would be the date on which the original assignor was required to provide such form) or if such form otherwise is not required hereunder) such Lender (or assignee Lender or Participant) shall not be entitled to the benefits of this Section 4.6 with respect to Covered Taxes imposed by reason of such failure.
All fees and expenses payable pursuant to Section 11.3 shall be paid together with value added tax or any similar tax (if any) properly chargeable thereon. Any value added tax chargeable in respect of any services supplied by a Lender or an Agent under this Agreement shall, on delivery of the value added tax invoice, be paid in addition to any sum agreed to be paid hereunder.
SECTION 4.7. Reserve Costs. Without in any way limiting the Borrowers obligations under Section 4.3, the Borrower shall, with effect from the Effective Time, pay to the Facility Agent for the account of each Lender on the last day of each Interest Period, so long as the relevant Lending Office of such Lender is required to maintain reserves against Eurocurrency liabilities under Regulation D of the F.R.S. Board, upon notice from such Lender, an additional amount equal to the product of the following for the Loan for each day during such Interest Period:
(i) the principal amount of the Loan outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of which is the rate (expressed as a decimal) at which interest accrues on the Loan for such Interest Period as provided in this Agreement (less, if applicable, the Floating Rate Margin) and the denominator of which is one minus any increase after the Signing Date in the effective rate (expressed as a decimal) at which such reserve requirements are imposed on such Lender minus (y) such numerator; and
(iii) 1/360.
Such notice shall (i) describe in reasonable detail the reserve requirement that has been imposed, together with the approximate date of the effectiveness thereof, (ii) set forth the applicable reserve percentage, (iii) certify that such request is consistent with such Lenders treatment of other borrowers that are subject to similar provisions and (iv) certify that, to the best of its knowledge, such requirements are of general application in the commercial banking industry in the United States.
Each Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and the terms of the BpiFAE Insurance Policy and (if the Fixed Rate applies) the arrangements with Natixis DAI relating to the CIRR) to avoid the requirement of maintaining such reserves (including by designating a different Lending Office) if such efforts would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 4.8. Payments, Computations, etc.
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.
SECTION 4.9. Replacement Lenders, etc. If the Borrower shall be required to make any payment to any Lender pursuant to Section 4.2(c), 4.3, 4.4, 4.5, 4.6 or 4.7, the Borrower shall be entitled at any time (so long as no Default and no Prepayment Event shall have occurred and be continuing) within 180 days after receipt of notice from such Lender of such required payment to (a) terminate such Lenders Commitment (where upon the Percentage of each other Lender shall automatically be adjusted to an amount equal to such Lenders ratable share of the remaining Commitments), (b) prepay the affected portion of such Lenders Loan in full, together with accrued interest thereon through the date of such prepayment (provided that the Borrower shall not terminate any Lenders Commitment pursuant to clause (a) or prepay any such Lender pursuant to this clause (b) without replacing such Lender pursuant to the following clause (c) until a 30-day period shall have elapsed during which the Borrower and the Facility Agent shall have attempted in good faith to replace such Lender), and/or (c) replace such Lender with another financial institution reasonably acceptable to the Facility Agent and (if the Fixed Rate applies) Natixis DAI, provided that (i) each such assignment shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement and (ii) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section unless and until such Lender shall have received one or more payments from either the Borrower or one or more Assignee Lenders in an aggregate amount at least equal to the aggregate outstanding principal amount of the Loan owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement. Each Lender represents and warrants to the Borrower that, as of the Signing Date (or, with respect to any Lender not a party hereto on the Signing Date, on the date that such Lender becomes a party hereto), there is no existing treaty, law, regulation, regulatory requirement, interpretation, directive, guideline, decision or request pursuant to which such Lender would be entitled to request any payments under any of Sections 4.3, 4.4, 4.5, 4.6 and 4.7 to or for account of such Lender.
SECTION 4.10. Sharing of Payments.
SECTION 4.10.1. Payments to Lenders. If a Lender (a Recovering Lender) receives or recovers any amount from the Borrower other than in accordance with Section 4.8 (Payments, Computations, etc.) (a Recovered Amount) and applies that amount to a payment due under the Loan Documents then:
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.
SECTION 4.10.2. Redistribution of payments. The Facility Agent shall treat the Sharing Payment as if it had been paid by the Borrower and distribute it between the Lenders (other than the Recovering Lender) (the Sharing Lenders) in accordance with the provisions of this Agreement towards the obligations of the Borrower to the Sharing Lenders.
SECTION 4.10.3. Recovering Lenders rights. On a distribution by the Facility Agent under Section 4.10.2 of a payment received by a Recovering Lender from the Borrower, as between the Borrower and the Recovering Lender, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by the Borrower.
SECTION 4.10.4. Reversal of redistribution If any part of the Sharing Payment received or recovered by a Recovering Lender becomes repayable and is repaid by that Recovering Lender, then:
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.
SECTION 4.10.5. Exceptions.
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.
SECTION 4.11. Set-off. Upon the occurrence and during the continuance of an Event of Default or a Prepayment Event, each Lender shall have, to the extent permitted by applicable law, the right to appropriate and apply to the payment of the Obligations then due and owing to it any and all balances, credits, deposits, accounts or moneys of the Borrower then or thereafter maintained with such Lender; provided that any such appropriation and application shall be subject to the provisions of Section 4.10. Each Lender agrees promptly to notify the Borrower and the Facility Agent after any such set-off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of set-off under applicable law or otherwise) which such Lender may have.
SECTION 4.12. Use of Proceeds. The Borrower shall apply the proceeds of the Loan made available to the Borrower in respect of the Additional Advances for the purpose of making payments of, or reimbursing the Borrower for payments already made for, the amounts referred to in clauses 5.2, 5.3 and/or 5.4 of the Novation Agreement and, without limiting the foregoing, no proceeds of the Loan will be used to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934 or any margin stock, as defined in F.R.S. Board Regulation U.
SECTION 4.13. FATCA Information.
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):
(i) confirm to that other party whether it is:
(A) a FATCA Exempt Party; or
(B) not a FATCA Exempt Party;
(ii) supply to that other party such forms, documentation and other information relating to its status under FATCA as that other party reasonably requests for the purposes of that other partys compliance with FATCA;
(iii) supply to that other party such forms, documentation and other information relating to its status as that other party reasonably requests for the purposes of that other partys compliance with any other law, regulation, or exchange of information regime.
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:
(i) any law or regulation;
(ii) any fiduciary duty; or
(iii) any duty of confidentiality.
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.
SECTION 4.14. Resignation of the Facility Agent. The Facility Agent shall resign (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent) if, either:
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;
and (in each case) a Lender reasonably believes that a party to this Agreement will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and that Lender, by notice to the Facility Agent, requires it to resign.
ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1. Advance of the Loan. The obligation of the Lenders to fund the relevant portion of the Loan to be made available on the Actual Delivery Date shall be subject to the prior or concurrent satisfaction of each of the conditions precedent set forth in this Section 5.1. The Facility Agent shall advise the Lenders of the satisfaction of the conditions precedent set forth in this Section 5.1 prior to funding on the Actual Delivery Date.
SECTION 5.1.1. Resolutions, etc. The Facility Agent shall have received from the Borrower:
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:
(x) resolutions of its Board of Directors then in full force and effect authorizing the execution, delivery and performance of this Agreement and each other Loan Document, and
(y) Organic Documents of the Borrower,
and upon which certificate the Lenders may conclusively rely until the Facility Agent shall have received a further certificate of the Secretary or Assistant Secretary of the Borrower canceling or amending such prior certificate; and
b) a Certificate of Good Standing issued by the relevant Liberian authorities in respect of the Borrower.
SECTION 5.1.2. Opinions of Counsel. The Facility Agent shall have received opinions, addressed to the Facility Agent and each Lender from:
a) Watson Farley & Williams LLP, counsel to the Borrower, as to Liberian Law, covering the matters set forth in Exhibit B-1 hereto (and which shall be updated to include reference to the Escrow Account Security);
b) Norton Rose Fulbright LLP, counsel to the Facility Agent and the Lenders, covering the matters set forth in Exhibit B-2 hereto (and which shall be updated to include reference to the Escrow Account Security) and, if the BpiFAE 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,
each such opinion to be updated to take into account all relevant and applicable Loan Documents at the time of issue thereof.
SECTION 5.1.3. BpiFAE Insurance Policy. The Facility Agent or the ECA Agent shall have received the BpiFAE Insurance Policy duly issued and BpiFAE shall not have, prior to the advance of the Loan, delivered to the Facility Agent or the ECA Agent any notice seeking the cancellation, suspension or termination of the BpiFAE Insurance Policy or the suspension of the drawing of the Additional Advances under this Agreement.
SECTION 5.1.4. Closing Fees, Expenses, etc. The Facility Agent shall have received for its own account, or for the account of each Lender or BpiFAE, as the case may be, all fees that the Borrower shall have agreed in writing to pay to the Facility Agent (whether for its own account or for the account of any of the Lenders) that are due and owing as of the date of such funding and all invoiced expenses of the Facility Agent (including the agreed fees and expenses of counsel to the Facility Agent and the BpiFAE Premium) required to be paid by the Borrower pursuant to Section 11.3 or that the Borrower has otherwise agreed in writing to pay to the Facility Agent, in each case on or prior to the date of such funding.
SECTION 5.1.5. Compliance with Warranties, No Default, etc. Both before and after giving effect to the funding of the Loan the following statements shall be true and correct:
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.
SECTION 5.1.6. Loan Request. The Facility Agent shall have received a Loan Request duly executed by the Borrower together with:
a) where an Additional Advance is requested in respect of the Non-Yard Costs, the Delivery Non-Yard Costs Certificate;
b) 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 Paid Non-Yard Costs to be financed as at the time of issue 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;
c) 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
d) 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.
SECTION 5.1.7. Foreign Exchange Counterparty Confirmations. The Facility Agent shall have received the documentation and other information referred to in clause 5.6 of the Novation Agreement.
SECTION 5.1.8. Protocol of delivery. The Facility Agent shall have received a copy of the protocol of delivery and acceptance under the Construction Contract duly signed by the Builder and the Borrower or Celebrity Edge Inc.
SECTION 5.1.9. Title to Purchased Vessel. The Facility Agent shall have received evidence that the Purchased Vessel is legally and beneficially owned by the Borrower or Celebrity Edge Inc., free of all recorded Liens, other than Liens permitted by Section 7.2.3 and, to the extent not yet discharged, the Mortgage (as defined in the Novation Agreement).
SECTION 5.1.10. Interest Stabilisation. The ECA Agent shall have received a duly executed fixed rate approval from Natixis DAI issued to the Lenders in respect of the CIRR applicable to the Loan and shall have been informed by the French Authorities of the conditions of the interest make-up mechanisms (stabilisation du taux dintérêt) applicable to the Loan under the applicable Interest Stabilisation Agreement in respect of the Lenders, such conditions to specify, among other things, that the CIRR has been retained under the interest make-up mechanisms applicable to the Loan.
In relation to Section 5.1.10, if a Lender (an Ineligible Lender) becomes ineligible or otherwise ceases to be a party to an Interest Stabilisation Agreement, it shall promptly upon becoming aware thereof (and by no later than 15 Business Days before the anticipated Actual Delivery Date) notify the Borrower, the ECA Agent and the Facility Agent.
Following receipt of such a notice, the ECA Agent (through the Facility Agent) shall give to the Borrower at least 10 Business Days prior notice stating if the condition precedent in Section 5.1.10 will not be satisfied due to the Ineligible Lender but would be satisfied by the replacement of the Ineligible Lender as set out below, with such replacement to take effect for the purpose of this Section on the Actual Delivery Date.
On its receipt of such notice from the ECA Agent, the Borrower shall be entitled, at any time thereafter and without prejudice to any rights and remedies it may have against such Ineligible Lender pursuant to Section 3.3.3, to replace such Ineligible Lender with another bank or financial institution reasonably acceptable to the Facility Agent, BpiFAE and Natixis DAI with effect from the Actual Delivery Date, provided that (i) each such assignment shall be either an assignment of all of the rights and obligations of the Ineligible Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the Ineligible Lender under this Agreement and (ii) no Lender shall be obligated to make effective any such assignment as a result of a demand by the Borrower pursuant to this Section unless and until such Lender shall have received one or more payments from one or more Assignee Lenders in an aggregate amount equal to the aggregate outstanding principal amount of the portion of the Novated Loan Balance which, immediately following the Novation Effective Time, would have been owing to such Lender pursuant to Section 2.3(a) had that Lender not been replaced prior to the Novation Effective Time. The ECA Agent and 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 Ineligible Lender, and taking such other steps that may be reasonably required and which are within the control of the ECA Agent and the Facility Agent to assist with the satisfaction of the condition precedent in Section 5.1.10 prior to funding on the Actual Delivery Date.
Provided however the Borrower shall be entitled, without prejudice to its rights and remedies pursuant to Section 3.3.3, to elect that if at the Actual Delivery Date the condition precedent in Section 5.1.10 is not satisfied the Floating Rate should apply to the Loan, such election to be made by notice in writing to the Facility Agent not less than five (5) Business Days prior to the anticipated Actual Delivery Date in which event, subject to the approval of BpiFAE, the Loan shall bear interest at the Floating Rate and the condition set out in Section 5.1.10 shall be deemed waived by the Lenders.
The ECA Agent (through the Facility Agent) shall, promptly after the Borrowers request, advise the Borrower whether it is aware (based solely on information obtained from Natixis DAI and other French Authorities and/or received from the Lenders at the time of any such request and without any liability on the ECA Agent for the accuracy of that information) that the condition precedent in Section 5.1.10 will not or may not be satisfied as required by Section 5.1.10.
SECTION 5.1.1. Escrow Account Security. The Facility Agent shall have received the Escrow Account Security duly executed by the Borrower together with a duly executed notice of charge and acknowledgement thereto executed by the Borrower and the Escrow Account Bank respectively.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the Lenders and the Facility Agent to enter into this Agreement and to make the Loan hereunder, the Borrower represents and warrants to the Facility Agent and each Lender as set forth in this Article VI as of the Actual Delivery Date (except as otherwise stated).
SECTION 6.1. Organization, etc. The Borrower is a corporation validly organized and existing and in good standing under the laws of its jurisdiction of incorporation; the Borrower is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the nature of its business requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect; and the Borrower has full power and authority, has taken all corporate action and holds all governmental and creditors licenses, permits, consents and other approvals necessary to enter into each Loan Document and to perform the Obligations.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution, delivery and performance by the Borrower of this Agreement and each other Loan Document, are within the Borrowers corporate powers, have been duly authorized by all necessary corporate action, and do not:
a) contravene the Borrowers 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 Borrowers properties except as would not reasonably be expected to result in a Material Adverse Effect.
SECTION 6.3. Government Approval, Regulation, etc. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or other Person is required for the due execution, delivery or performance by the Borrower of this Agreement or any other Loan Document (except for authorizations or approvals not required to be obtained on or prior to the Actual Delivery
Date or that have been obtained or actions not required to be taken on or prior to the Actual Delivery Date or that have been taken). The Borrower holds all governmental licenses, permits and other approvals required to conduct its business as conducted by it on the Actual Delivery Date, except to the extent the failure to hold any such licenses, permits or other approvals would not have a Material Adverse Effect.
SECTION 6.4. Compliance with Environmental Laws. The Borrower is in compliance with all applicable Environmental Laws, except to the extent that the failure to so comply would not have a Material Adverse Effect.
SECTION 6.5. Validity, etc. This Agreement constitutes the legal, valid and binding obligation of the Borrower enforceable in accordance with its terms, except as the enforceability hereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors rights generally or by general equitable principles.
SECTION 6.6. No Default, Event of Default or Prepayment Event. No Default, Event of Default or Prepayment Event has occurred and is continuing.
SECTION 6.7. Litigation. There is no action, suit, litigation, investigation or proceeding pending or, to the knowledge of the Borrower, threatened against the Borrower, that (i) except as set forth in filings made by the Borrower with the SEC in the Borrowers reasonable opinion might reasonably be expected to materially adversely affect the business, operations or financial condition of the Borrower and its Subsidiaries (taken as a whole) (collectively, Material Litigation) or (ii) purports to affect the legality, validity or enforceability of the Loan Documents or the consummation of the transactions contemplated hereby.
SECTION 6.8. The Purchased Vessel. Immediately following the delivery of the Purchased Vessel to the Borrower under the Construction Contract, the Purchased Vessel will be:
a) legally and beneficially owned by the Borrower or one of the Borrowers wholly owned Subsidiaries,
b) registered in the name of the Borrower or one of the Borrowers 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 Borrowers wholly owned Subsidiaries.
SECTION 6.9. Obligations rank pari passu; Liens.
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.
SECTION 6.10. Withholding, etc.. As of the Signing Date, no payment to be made by the Borrower under any Loan Document is subject to any withholding or like tax imposed by any Applicable Jurisdiction.
SECTION 6.11. No Filing, etc. Required. No filing, recording or registration and no payment of any stamp, registration or similar tax is necessary under the laws of any Applicable Jurisdiction to ensure the legality, validity, enforceability, priority or admissibility in evidence of this Agreement or the other Loan Documents (except for filings, recordings, registrations or payments not required to be made on or prior to the Actual Delivery Date or that have been made).
SECTION 6.12. No Immunity. The Borrower is subject to civil and commercial law with respect to the Obligations. Neither the Borrower nor any of its properties or revenues is entitled to any right of immunity in any Applicable Jurisdiction from suit, court jurisdiction, judgment, attachment (whether before or after judgment), set-off or execution of a judgment or from any other legal process or remedy relating to the Obligations (to the extent such suit, court jurisdiction, judgment, attachment, set-off, execution, legal process or remedy would otherwise be permitted or exist).
SECTION 6.13. Investment Company Act. The Borrower is not required to register as an investment company within the meaning of the Investment Company Act of 1940, as amended.
SECTION 6.14. Regulation U. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of the Loan will be used for a purpose which violates, or would be inconsistent with, F.R.S. Board Regulation U. Terms for which meanings are provided in F.R.S. Board Regulation U or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
SECTION 6.15. Accuracy of Information. The financial and other information (other than financial projections or other forward looking information) furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller in connection with the negotiation of this Agreement is, when taken as a whole, to the best knowledge and belief of the Borrower, true and correct and contains no misstatement of a fact of a material nature. All financial projections, if any, that have been furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller
in connection with this Agreement have been or will be prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time made (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Borrowers control, and that no assurance can be given that the projections will be realized). All financial and other information furnished to the Facility Agent and the Lenders in writing by or on behalf of the Borrower by its chief financial officer, treasurer or corporate controller after the date of this Agreement shall have been prepared by the Borrower in good faith.
SECTION 6.16. Compliance with Laws. The Borrower is in compliance with all applicable laws, rules, regulations and orders, except to the extent that the failure to so comply does not and could not reasonably be expected to have a Material Adverse Effect, and the Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. The Borrower and its Subsidiaries and, to the knowledge of the Borrower, their respective officers, employees, directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions, in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in Borrower being designated as a Sanctioned Person. None of (a) the Borrower, any Subsidiary or to the knowledge of the Borrower or such Subsidiary any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with the Facility Agent and each Lender that, from the Effective Date (or, where applicable, from such time as may be stated in any applicable provision below) until all Commitments have terminated and all Obligations have been paid in full, the Borrower will perform the obligations set forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The Borrower will furnish, or will cause to be furnished, to the Facility Agent (with sufficient copies for distribution to each Lender) the following financial statements, reports, notices and information:
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 Borrowers 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 Borrowers 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);
provided that information required to be furnished to the Facility Agent under subsections (a), (b) and (g) of this Section 7.1.1 shall be deemed furnished to the Facility Agent when available free of charge on the Borrowers website at http://www.rclinvestor.com or the SECs website at http://www.sec.gov.
SECTION 7.1.2. Approvals and Other Consents. The Borrower will obtain (or cause to be obtained) all such governmental licenses, authorizations, consents, permits and approvals as may be required for (a) the Borrower to perform its obligations under this Agreement and the other Loan Documents and (b) the operation of the Purchased Vessel in compliance with all applicable laws, except, in each case, to the extent that failure
to obtain (or cause to be obtained) such governmental licenses, authorizations, consents, permits and approvals would not be expected to have a Material Adverse Effect.
SECTION 7.1.3. Compliance with Laws, etc. The Borrower will, and will cause each of its Subsidiaries to, comply in all material respects with all applicable laws, rules, regulations and orders, except (other than as described in clauses (a) and (f) below) to the extent that the failure to so comply would not have a Material Adverse Effect, which compliance shall in any case include (but not be limited to):
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.
SECTION 7.1.4. The Purchased Vessel. The Borrower will:
a) cause the Purchased Vessel to be exclusively operated by or chartered to the Borrower or one of the Borrowers 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 Borrowers 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 Borrowers 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.
SECTION 7.1.5. Insurance. The Borrower will maintain or cause to be maintained with responsible insurance companies insurance with respect to the Purchased Vessel against such casualties, third-party liabilities and contingencies and in such amounts, in each case, as is customary for other businesses of similar size in the passenger cruise line industry (provided that in no event will the Borrower or any Subsidiary be required to obtain any business interruption, loss of hire or delay in delivery insurance) and will, upon request of the Facility Agent, furnish to the Facility Agent (with sufficient copies for distribution to each Lender) at reasonable intervals a certificate of a senior officer of the Borrower setting forth the nature and extent of all insurance maintained by the Borrower and certifying as to compliance with this Section.
SECTION 7.1.6. Books and Records. The Borrower will keep books and records that accurately reflect all of its business affairs and transactions and permit the Facility Agent and each Lender or any of their respective representatives, at reasonable times and intervals and upon reasonable prior notice, to visit each of its offices, to discuss its financial matters with its officers and to examine any of its books or other corporate records.
SECTION 7.1.7. BpiFAE Insurance Policy/French Authority Requirements. The Borrower shall, on the reasonable request of the ECA Agent or the Facility Agent, provide such other information as required under the BpiFAE Insurance Policy and/or the Interest Stabilisation Agreement as necessary to enable the ECA Agent or the Facility Agent to obtain the full support of the relevant French Authority pursuant to the BpiFAE Insurance Policy and/or the Interest Stabilisation Agreement (as the case may be). The Borrower must pay to the ECA Agent or the Facility Agent the amount of all reasonable costs and expenses reasonably incurred by the ECA Agent or the Facility Agent in connection with complying with a request by any French Authority for any additional information necessary or desirable in connection with the BpiFAE Insurance Policy or the Interest Stabilisation Agreement (as the case may be); provided that the Borrower is consulted before the ECA Agent or Natixis incurs any such cost or expense.
SECTION 7.2. Negative Covenants. The Borrower agrees with the Facility Agent and each Lender that, from the Effective Date until all Commitments have terminated and all Obligations have been paid and performed in full, the Borrower will perform the obligations set forth in this Section 7.2.
SECTION 7.2.1. Business Activities. The Borrower will not, and will not permit any of its Subsidiaries to, engage in any principal business activity other than those engaged in by the Borrower and its Subsidiaries on the date hereof and other business activities reasonably related, ancillary or complimentary thereto or that are reasonable extensions thereof.
SECTION 7.2.2. Indebtedness. The Borrower will not permit any of the Existing Principal Subsidiaries to create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, other than, without duplication, the following:
a) Indebtedness secured by Liens of the type described in Section 7.2.3;
b) Indebtedness owing to the Borrower or a 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 (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such Indebtedness, as applicable) 10.0% 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
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.
SECTION 7.2.3. Liens. The Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its property, revenues or assets, whether now owned or hereafter acquired, except:
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 (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such indebtedness, as applicable) 10.0% of the total assets of the Borrower and its Subsidiaries (the Lien Basket Amount) taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter; provided, however that,
if, at any time, the Senior Debt Rating of the Borrower is less than Investment Grade as given by both Moodys and S&P, the Lien Basket Amount shall be the greater of (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;
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 by more than 60 days 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 crews 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:
(i) secure obligations covered (or reasonably expected to be covered) by insurance;
(ii) were incurred in the course of or incidental to trading such Vessel in connection with repairs or other work to such Vessel; or
(iii) were incurred in connection with work to such Vessel that is required to be performed pursuant to applicable law, rule, regulation or order;
provided that, in each case described in this clause (k), such Liens are either (x) discharged in the ordinary course of business or (y) being diligently contested in good faith by appropriate proceedings;
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;
n) Liens on cash or Cash Equivalents or marketable securities securing obligations in respect of Hedging Instruments not incurred for speculative purposes or securing letters of credit that support such obligations;
o) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and deposits securing liabilities to insurance carriers under insurance or self-insurance arrangements;
p) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary; and
q) licenses, sublicenses, leases or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries.
SECTION 7.2.4. Financial Condition. The Borrower will not permit:
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.
In addition, if, at any time, the Senior Debt Rating of the Borrower is less than Investment Grade as given by both Moodys and S&P, the Borrower will not permit 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).
SECTION 7.2.5. [Intentionally omitted]
SECTION 7.2.6. Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
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:
(i) after giving effect thereto, the Stockholders Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation, (and without prejudice to the provisions of Sections 3.2b) and c) and 9.1.10, which shall not restrict the proposed merger but which can still apply to the extent that the proposed merger would give rise to any of the events or circumstances contemplated by such Sections):
(A) the surviving corporation shall have assumed in a writing, delivered to the Facility Agent, all of the Borrowers obligations hereunder and under the other Loan Documents; and
(B) the surviving corporation shall, promptly upon the request of the Facility Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Facility Agent or any Lender in order for the Facility Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary know your customer or other similar checks under all applicable laws and regulations.
SECTION 7.2.7. Asset Dispositions, etc. The Borrower will not, and will not permit any of its Subsidiaries to, sell, transfer, contribute or otherwise convey, or grant options, warrants or other rights with respect to, :
all or substantially all of the assets of (a) the Borrower or (b) the Subsidiaries of the Borrower, taken as a whole, except sales of assets between or among the Borrower and Subsidiaries of the Borrower.
SECTION 7.3. Lender incorporated in the Federal Republic of Germany. The representations and warranties and covenants given in Sections 6.16 and 7.1.3(f) respectively shall only be given, and be applicable to, a Lender incorporated in the Federal Republic of Germany insofar as the giving of and compliance with such representations and warranties do not result in a violation of or conflict with section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung) (in conjunction with section 4 paragraph 1 a no.3 foreign trade law (AWG) (Außenwirtschaftsgesetz)), any provision of Council Regulation (EC) 2271/1996 or any similar applicable anti-boycott law or regulation.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events or occurrences described in this Section 8.1 shall constitute an Event of Default.
SECTION 8.1.1. Non-Payment of Obligations. The Borrower shall default in the payment when due of any principal of or interest on the Loan or any Commitment Fee, or the Borrower shall default in the payment of any fee due and payable under the Fee Letter, provided that, in the case of any default in the payment of any interest on the Loan or of any Commitment Fee, such default shall continue unremedied for a period of at least five (5) Business Days after notice thereof shall have been given to the Borrower by the Facility Agent; and provided further that, in the case of any default in the payment of any fee due and payable under the Fee Letter, such default shall continue unremedied for a period of at least ten days after notice thereof shall have been given to the Borrower by the Facility Agent.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of the Borrower made or deemed to be made hereunder (including any certificates delivered pursuant to Article V) is or shall be incorrect in any material respect when made.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations. The Borrower shall default in the due performance and observance of any other agreement contained herein or in any other Loan Document (other than the covenants set forth in Section 7.2.4 and the obligations referred to in Section 8.1.1) and such default shall continue unremedied for a period of five days after notice thereof shall have been given to the Borrower by the Facility Agent or any Lender (or, if (a) such default is capable of being remedied within 30 days (commencing on the first day following such five-day period) and (b) the Borrower is actively seeking to remedy the same during such period, such default shall continue unremedied for at least 35 days after such notice to the Borrower).
SECTION 8.1.4. Default on Other Indebtedness. (a) The Borrower or any of its Principal Subsidiaries shall fail to pay any Indebtedness that is outstanding in a principal amount of at least $100,000,000 (or the equivalent in other currencies) in the aggregate (but excluding Indebtedness hereunder or with respect to Hedging Instruments)
when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; (b) the occurrence under any Hedging Instrument of an Early Termination Date (as defined in such Hedging Instrument) resulting from (A) any event of default under such Hedging Instrument as to which the Borrower is the Defaulting Party (as defined in such Hedging Instrument) or (B) any Termination Event (as so defined) as to which the Borrower is an Affected Party (as so defined) and, in either event, the termination value with respect to any such Hedging Instrument owed by the Borrower as a result thereof is greater than $100,000,000 and the Borrower fails to pay such termination value when due after applicable grace periods; or (c) any other event shall occur or condition shall exist under any agreement or instrument evidencing, securing or relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to cause or permit the holder or holders of such Indebtedness to cause such Indebtedness to become due and payable prior to its scheduled maturity; or (d) any such Indebtedness shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption or by voluntary agreement), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness is required to be made, in each case prior to the scheduled maturity thereof (other than as a result of any sale or other disposition of any property or assets under the terms of such Indebtedness); provided that any required prepayment or right to require prepayment triggered by terms that are certified by the Borrower to be unique to, but customary in, ship financings shall not constitute an Event of Default under this Section 8.1.4 so long as any required prepayment is made when due. For purposes of determining Indebtedness for any Hedging Instrument, the principal amount of the obligations under any such instrument at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or any Principal Subsidiary would be required to pay if such instrument were terminated at such time.
SECTION 8.1.5. Bankruptcy, Insolvency, etc. The Borrower or any of the Principal Subsidiaries (or any of its other Subsidiaries to the extent that the relevant event described below would have a Material Adverse Effect) shall:
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.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in clauses (b) through (d) of Section 8.1.5 shall occur with respect to the Borrower, the Commitments (if not theretofore terminated) shall automatically terminate and the outstanding principal amount of the Loan and all other Obligations shall automatically be and become immediately due and payable, without notice or demand.
SECTION 8.3. Action if Other Event of Default. If any Event of Default (other than any Event of Default described in clauses (b) through (d) of Section 8.1.5 with respect to the Borrower) shall occur for any reason, whether voluntary or involuntary, and be continuing, the Facility Agent, upon the direction of the Required Lenders (after consultation with BpiFAE who shall have the right to instruct the Lenders to waive such Event of Default), shall by notice to the Borrower declare all of the outstanding principal amount of the Loan and other Obligations to be due and payable and/or the Commitments (if not theretofore terminated) to be terminated, whereupon the full unpaid amount of the Loan and other Obligations shall be and become immediately due and payable, without further notice, demand or presentment, and/or, as the case may be, the Commitments shall terminate.
ARTICLE IX
PREPAYMENT EVENTS
SECTION 9.1. Listing of Prepayment Events. Each of the following events or occurrences described in this Section 9.1 shall constitute a Prepayment Event.
SECTION 9.1.1. Change of Control. There occurs any Change of Control.
SECTION 9.1.2. Unenforceability. Any Loan Document shall cease to be the legally valid, binding and enforceable obligation of the Borrower (in each case, other than with respect to provisions of any Loan Document (i) identified as unenforceable in the form of the opinion of the Borrowers counsel set forth as Exhibit B-1 or (ii) that a court of competent jurisdiction has determined are not material) and such event shall continue unremedied for 15 days after notice thereof has been given to the Borrower by the Facility Agent.
SECTION 9.1.3. Approvals. Any material license, consent, authorization, registration or approval at any time necessary to enable the Borrower or any Principal Subsidiary to conduct its business shall be revoked, withdrawn or otherwise cease to be in full force and effect, unless the same would not have a Material Adverse Effect.
SECTION 9.1.4. Non-Performance of Certain Covenants and Obligations. The Borrower shall default in the due performance and observance of any of the covenants set forth in Sections 4.12 or 7.2.4.
SECTION 9.1.5. Judgments. Any judgment or order for the payment of money in excess of $100,000,000 shall be rendered against the Borrower or any of the Principal Subsidiaries by a court of competent jurisdiction and the Borrower or such Principal Subsidiary shall have failed to satisfy such judgment and either:
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.
SECTION 9.1.6. Condemnation, etc.. The Purchased Vessel shall be condemned or otherwise taken under color of law or requisitioned and the same shall continue unremedied for at least 20 days, unless such condemnation or other taking would not have a Material Adverse Effect.
SECTION 9.1.7. Arrest. The Purchased Vessel shall be arrested and the same shall continue unremedied for at least 20 days, unless such arrest would not have a Material Adverse Effect.
SECTION 9.1.8. Sale/Disposal of the Purchased Vessel. The Purchased Vessel is sold to a company which is not the Borrower or any other Subsidiary of the Borrower (other than for the purpose of a lease back to the Borrower or any other Subsidiary of the Borrower).
SECTION 9.1.9. BpiFAE Insurance Policy. The BpiFAE Insurance Policy is cancelled for any reason or ceases to be in full force and effect.
SECTION 9.1.10. Illegality. No later than the close of business on the last day of the Option Period related to the giving of any Illegality Notice by an affected Lender pursuant to Section 3.2(b), either: (x) the Borrower has not elected to take an action specified in clause (1) or (2) of Section 3.2(c) or (y) if any such election shall have been made, the Borrower has failed to take the action required in respect of such election. In such circumstances the Facility Agent (at the direction of the affected Lender) shall by notice to the Borrower require the Borrower to prepay in full all principal and interest and all other Obligations owing to such Lender either (i) forthwith or, as the case may be, (ii) on a future specified date not being earlier than the latest date permitted by the relevant law.
SECTION 9.2. Mandatory Prepayment. If any Prepayment Event (other than a Prepayment Event under Section 9.1.10) shall occur and be continuing, the Facility Agent, upon the direction of the Required Lenders, shall by notice to the Borrower require the Borrower to prepay in full on the date of such notice all principal of and interest on the Loan and all other Obligations (and, in such event, the Borrower agrees to so pay the full unpaid amount of the Loan and all accrued and unpaid interest thereon and all other Obligations).
SECTION 9.3. Mitigation. If the ECA Agent, the Facility Agent or any of the Lenders become aware that an event or circumstance has arisen which will cause the BpiFAE Insurance Policy to be cancelled for any reason or no longer remain in full force and effect they shall notify the Borrower and the Lenders, the Borrower, the ECA Agent and the Facility Agent shall negotiate in good faith for a period of up to 30 days or, if less, the date by which the BpiFAE Insurance Policy shall be terminated or cease to be in full force and effect to determine whether the facility can be restructured and/or the Loan refinanced in a manner acceptable to each of the Lenders in their absolute discretion. The Lenders will use reasonable efforts to involve BpiFAE in such negotiations.
ARTICLE X
THE FACILITY AGENT AND THE ECA AGENT
SECTION 10.1. Actions. Each Lender hereby appoints Citibank Europe plc, UK Branch, as Facility Agent and Sumitomo Mitsui Banking Corporation Europe Limited, Paris Branch as ECA Agent, as its agent under and for purposes of this Agreement and each other Loan Document (for purposes of this Article X, the Facility Agent and the ECA Agent are referred to collectively as the Agents). Each Lender authorizes the Agents to act on behalf of such Lender under this Agreement and each other Loan Document and, in the absence of other written instructions from the Required Lenders received from time to time by the Agents (with respect to which each Agent agrees that it will comply, except as otherwise provided in this Section 10.1 or as otherwise advised by counsel or as otherwise instructed by any French Authority, it being understood and agreed that any instructions provided by a French Authority shall prevail), to exercise such powers hereunder and thereunder as are specifically delegated to or required of the Agents by the terms hereof and thereof, together with such powers as may be reasonably incidental thereto. Neither Agent shall be obliged to act on the instructions of any Lender or the Required Lenders if to do so would, in the opinion of such Agent, be contrary to any provision of this Agreement or any other Loan Document or the BpiFAE Insurance Policy or to any law or the conflicting instructions of any French Authority, or would expose such Agent to any actual or potential liability to any third party. As between the Lenders and the Agents, it is acknowledged that each Agents duties under this Agreement and the other Loan Documents are solely mechanical and administrative in nature.
SECTION 10.2. Indemnity. Each Lender hereby indemnifies (which indemnity shall survive any termination of this Agreement) each Agent, pro rata according to such Lenders Percentage, from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel) that be incurred by or asserted or awarded against, such Agent in any way relating to or arising out of this Agreement and any other Loan Document or any action taken or omitted
by such Agent under this Agreement or any other Loan Document; provided that no Lender shall be liable for the payment of any portion of such claims, damages, losses, liabilities and expenses which have resulted from such Agents gross negligence or willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse each Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by such Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that such Agent is not reimbursed for such expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any such indemnified costs, this Section applies whether any such investigation, litigation or proceeding is brought by any Agent, any Lender or a third party. Neither Agent shall be required to take any action hereunder or under any other Loan Document, or to prosecute or defend any suit in respect of this Agreement or any other Loan Document, unless it is expressly required to do so under this Agreement or is indemnified hereunder to its satisfaction. If any indemnity in favor of an Agent shall be or become, in such Agents determination, inadequate, such Agent may call for additional indemnification from the Lenders and cease to do the acts indemnified against hereunder until such additional indemnity is given.
SECTION 10.3. Funding Reliance, etc. Each Lender shall notify the Facility Agent by 4:00 p.m., London time, one day prior to the advance of the Loan if it is not able to fund the following day. Unless the Facility Agent shall have been notified by telephone, confirmed in writing, by any Lender by 4:00 p.m., London time, on the day prior to the advance of the Loan that such Lender will not make available the amount which would constitute its Percentage of the Loan on the date specified therefor, the Facility Agent may assume that such Lender has made such amount available to the Facility Agent and, in reliance upon such assumption, may, but shall not be obliged to, make available to the Borrower a corresponding amount. If and to the extent that such Lender shall not have made such amount available to the Facility Agent, such Lender and the Borrower severally agree to repay the Facility Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date the Facility Agent made such amount available to the Borrower to the date such amount is repaid to the Facility Agent, at the interest rate applicable at the time to the Loan without premium or penalty.
SECTION 10.4. Exculpation. Neither of the Agents nor any of their respective directors, officers, employees or agents shall be liable to any Lender for any action taken or omitted to be taken by it under this Agreement or any other Loan Document, or in connection herewith or therewith, except for its own willful misconduct or gross negligence. Without limitation of the generality of the foregoing, each Agent (i) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it and in accordance with the advice of such counsel, accountants or experts, (ii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement, (iii) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of this Agreement on the part of the Borrower or the existence at any time of any Default or Prepayment Event or to inspect the property (including the books and records) of the
Borrower, (iv) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto, (v) shall incur no liability under or in respect of this Agreement by action upon any notice, consent, certificate or other instrument or writing (which may be by telecopier) believed by it to be genuine and signed or sent by the proper party or parties, and (vi) shall have no responsibility to the Borrower or any Lender on account of (A) the failure of a Lender or the Borrower to perform any of its obligations under this Agreement or any Loan Document; (B) the financial condition of the Borrower; (C) the completeness or accuracy of any statements, representations or warranties made in or pursuant to this Agreement or any Loan Document, or in or pursuant to any document delivered pursuant to or in connection with this Agreement or any Loan Document; or (D) the negotiation, execution, effectiveness, genuineness, validity, enforceability, admissibility in evidence or sufficiency of this Agreement or any Loan Document or of any document executed or delivered pursuant to or in connection with any Loan Document.
SECTION 10.5. Successor. The Facility Agent may resign as such at any time upon at least 30 days prior notice to the Borrower and all Lenders and shall resign where required to do in accordance with Section 4.14, provided that any such resignation shall not become effective until a successor Facility Agent has been appointed as provided in this Section 10.5 and such successor Facility Agent has accepted such appointment. If the Facility Agent at any time shall resign, the Required Lenders shall, subject to the immediately preceding proviso and subject to the consent of the Borrower (such consent not to be unreasonably withheld), appoint another Lender as a successor to the Facility Agent which shall thereupon become such Facility Agents successor hereunder (provided that the Required Lenders shall, subject to the consent of the Borrower unless an Event or Default or a Prepayment Event shall have occurred and be continuing (such consent not to be unreasonably withheld or delayed) offer to each of the other Lenders in turn, in the order of their respective Percentages of the Loan, the right to become successor Facility Agent). If no successor Facility Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the Facility Agents giving notice of resignation, then the Facility Agent may, on behalf of the Lenders, appoint a successor Facility Agent, which shall be one of the Lenders or a commercial banking institution having a combined capital and surplus of at least $1,000,000,000 (or the equivalent in other currencies), subject, in each case, to the consent of the Borrower (such consent not to be unreasonably withheld). Upon the acceptance of any appointment as Facility Agent hereunder by a successor Facility Agent, such successor Facility Agent shall be entitled to receive from the resigning Facility Agent such documents of transfer and assignment as such successor Facility Agent may reasonably request, and shall thereupon succeed to and become vested with all rights, powers, privileges and duties of the resigning Facility Agent, and the resigning Facility Agent shall be discharged from its duties and obligations under this Agreement. After any resigning Facility Agents resignation hereunder as the Facility Agent, the provisions of:
a) this Article X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Facility Agent under this Agreement; and
b) Section 11.3 and Section 11.4 shall continue to inure to its benefit.
If a Lender acting as the Facility Agent assigns its Loan to one of its Affiliates, such Facility Agent may, subject to the consent of the Borrower (such consent not to be unreasonably withheld or delayed) assign its rights and obligations as Facility Agent to such Affiliate.
SECTION 10.6. Loans by the Facility Agent. The Facility Agent shall have the same rights and powers with respect to the Loan made by it or any of its Affiliates. The Facility Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of business with the Borrower or any Affiliate of the Borrower as if the Facility Agent were not the Facility Agent hereunder and without any duty to account therefor to the Lenders. The Facility Agent shall have no duty to disclose information obtained or received by it or any of its Affiliates relating to the Borrower or its Subsidiaries to the extent such information was obtained or received in any capacity other than as the Facility Agent.
SECTION 10.7. Credit Decisions. Each Lender acknowledges that it has, independently of each Agent and each other Lender, and based on such Lenders review of the financial information of the Borrower, this Agreement, the other Loan Documents (the terms and provisions of which being satisfactory to such Lender) and such other documents, information and investigations as such Lender has deemed appropriate, made its own credit decision to extend its Commitment. Each Lender also acknowledges that it will, independently of each Agent and each other Lender, and based on such other documents, information and investigations as it shall deem appropriate at any time, continue to make its own credit decisions as to exercising or not exercising from time to time any rights and privileges available to it under this Agreement or any other Loan Document.
SECTION 10.8. Copies, etc. Each Agent shall give prompt notice to each Lender of each notice or request required or permitted to be given to such Agent by the Borrower pursuant to the terms of this Agreement (unless concurrently delivered to the Lenders by the Borrower). Each Agent will distribute to each Lender each document or instrument received for its account and copies of all other communications received by such Agent from the Borrower for distribution to the Lenders by such Agent in accordance with the terms of this Agreement.
SECTION 10.9. The Agents Rights. Each Agent may (i) assume that all representations or warranties made or deemed repeated by the Borrower in or pursuant to this Agreement or any Loan Document are true and complete, unless, in its capacity as the Facility Agent, it has acquired actual knowledge to the contrary, (ii) assume that no Default has occurred unless, in its capacity as an Agent, it has acquired actual knowledge to the contrary, (iii) rely on any document or notice believed by it to be genuine, (iv) rely as to legal or other professional matters on opinions and statements of any legal or other professional advisers selected or approved by it, (v) rely as to any factual matters which might reasonably be expected to be within the knowledge of the Borrower on a certificate signed by or on behalf of the Borrower and (vi) refrain from exercising any right, power, discretion or remedy unless and until instructed to exercise that right, power, discretion or remedy and as to the manner of its exercise by the Lenders (or, where applicable, by the Required Lenders) and unless and until such Agent has received from the Lenders any payment which such Agent may require on account of, or any security which such Agent may require for, any costs, claims, expenses (including legal and other professional fees) and liabilities which it considers it may incur or sustain in complying with those instructions.
SECTION 10.10. The Facility Agents Duties. The Facility Agent shall (i) if requested in writing to do so by a Lender, make enquiry and advise the Lenders as to the performance or observance of any of the provisions of this Agreement or any Loan Document by the Borrower or as to the existence of an Event of Default and (ii) inform the Lenders promptly of any Event of Default of which the Facility Agent has actual knowledge.
The Facility Agent shall not be deemed to have actual knowledge of the falsehood or incompleteness of any representation or warranty made or deemed repeated by the Borrower or actual knowledge of the occurrence of any Default unless a Lender or the Borrower shall have given written notice thereof to the Facility Agent in its capacity as the Facility Agent. Any information acquired by the Facility Agent other than specifically in its capacity as the Facility Agent shall not be deemed to be information acquired by the Facility Agent in its capacity as the Facility Agent.
The Facility Agent may, without any liability to account to the Lenders, generally engage in any kind of banking or trust business with the Borrower or with the Borrowers subsidiaries or associated companies or with a Lender as if it were not the Facility Agent.
SECTION 10.11. Employment of Agents. In performing its duties and exercising its rights, powers, discretions and remedies under or pursuant to this Agreement or the Loan Documents, each Agent shall be entitled to employ and pay agents to do anything which such Agent is empowered to do under or pursuant to this Agreement or the Loan Documents (including the receipt of money and documents and the payment of money); provided that, unless otherwise provided herein, including without limitation Section 11.3, the employment of such agents shall be for such Agents account, and to act or refrain from taking action in reliance on the opinion of, or advice or information obtained from, any lawyer, banker, broker, accountant, valuer or any other person believed by such Agent in good faith to be competent to give such opinion, advice or information.
SECTION 10.12. Distribution of Payments. The Facility Agent shall pay promptly to the order of each Lender that Lenders Percentage Share of every sum of money received by the Facility Agent pursuant to this Agreement or the Loan Documents (with the exception of any amounts payable pursuant to the Fee Letter and any amounts which, by the terms of this Agreement or the Loan Documents, are paid to the Facility Agent for the account of the Facility Agent alone or specifically for the account of one or more Lenders) and until so paid such amount shall be held by the Facility Agent on trust absolutely for that Lender.
SECTION 10.13. Reimbursement. The Facility Agent shall have no liability to pay any sum to a Lender until it has itself received payment of that sum. If, however, the Facility Agent does pay any sum to a Lender on account of any amount prospectively due to that Lender pursuant to Section 10.12 before it has itself received payment of that amount, and the Facility Agent does not in fact receive payment within two (2) Business Days after the date on which that payment was required to be made by the terms of this Agreement or the Loan Documents, that Lender will, on demand by the Facility Agent, refund to the Facility Agent an amount equal to the amount received by it, together with an amount sufficient to reimburse the Facility Agent for any amount which the Facility Agent may certify that it has been required to pay by way of interest on money borrowed to fund the amount in question during the period beginning on the date on which that amount
was required to be paid by the terms of this Agreement or the Loan Documents and ending on the date on which the Facility Agent receives reimbursement.
SECTION 10.14. Instructions. Where an Agent is authorized or directed to act or refrain from acting in accordance with the instructions of the Lenders or of the Required Lenders each of the Lenders shall provide such Agent with instructions within three (3) Business Days of such Agents request (which request may be made orally or in writing). If a Lender does not provide such Agent with instructions within that period, that Lender shall be bound by the decision of such Agent. Nothing in this Section 10.14 shall limit the right of such Agent to take, or refrain from taking, any action without obtaining the instructions of the Lenders or the Required Lenders if such Agent in its discretion considers it necessary or appropriate to take, or refrain from taking, such action in order to preserve the rights of the Lenders under or in connection with this Agreement or the Loan Documents. In that event, such Agent will notify the Lenders of the action taken by it as soon as reasonably practicable, and the Lenders agree to ratify any action taken by the Facility Agent pursuant to this Section 10.14.
SECTION 10.15. Payments. All amounts payable to a Lender under this Section 10 shall be paid to such account at such bank as that Lender may from time to time direct in writing to the Facility Agent.
SECTION 10.16. Know your customer Checks. Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in this Agreement or the Loan Documents.
SECTION 10.17. No Fiduciary Relationship. Except as provided in Section 10.12, no Agent shall have any fiduciary relationship with or be deemed to be a trustee of or for any other person and nothing contained in this Agreement or any Loan Document shall constitute a partnership between any two or more Lenders or between either Agent and any other person.
SECTION 10.18. Illegality. The Agent shall refrain from doing anything which it reasonably believes would be contrary to any law of any jurisdiction (including but not limited to England and Wales, the United States of America or any jurisdiction forming part of it) or any regulation or directive of any agency of such state or jurisdiction or which would or might render it liable to any person and may without liability do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. The provisions of this Agreement and of each other Loan Document may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the
Borrower and the Required Lenders; provided that no such amendment, modification or waiver which would:
a) contravene or be in breach of the terms of the BpiFAE 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, BpiFAE 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.
No failure or delay on the part of the Facility Agent or any Lender in exercising any power or right under this Agreement or any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by any the Facility Agent or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The Lenders hereby agree, at any time and from time to time that the Nordea Agreement or the Bank of Nova Scotia Agreement is amended or refinanced, to negotiate in good faith to amend this Agreement to conform any representations, warranties, covenants or events of default in this Agreement to the amendments made to any substantively comparable provisions in the Nordea Agreement or the Bank of Nova Scotia Agreement or any refinancing thereof.
Neither the Borrowers rights nor its obligations under the Loan Documents shall be changed, directly or indirectly, as a result of any amendment, supplement, modification, variance or
novation of the BpiFAE Insurance Policy, except any amendments, supplements, modifications, variances or novations, as the case may be, which occur (i) with the Borrowers consent, (ii) at the Borrowers request or (iii) in order to conform to amendments, supplements, modifications, variances or novations effected in respect of the Loan Documents in accordance with their terms.
SECTION 11.2. Notices.
a) All notices and other communications provided to any party hereto under this Agreement or any other Loan Document shall be in writing, by facsimile or by electronic mail and addressed, delivered or transmitted to such party at its address, facsimile number or electronic mail address set forth below its signature hereto or set forth in the Lender Assignment Agreement or at such other address, or facsimile number as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when transmitted provided it is received in legible form; any notice, if transmitted by electronic mail, shall be deemed given upon acknowledgment of receipt by the recipient.
b) So long as 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 Loan Document (and any guaranties, security agreements and other agreements relating thereto).
SECTION 11.3. Payment of Costs and Expenses. The Borrower agrees to pay on demand all reasonable expenses of the Facility Agent (including the reasonable fees and out-of-pocket expenses of counsel to the Facility Agent and of local counsel, if any, who may be retained by counsel to the Facility Agent) in connection with any amendments, waivers, consents, supplements or other modifications to, this Agreement or any other Loan Document as may from time to time hereafter be required, whether or not the transactions contemplated hereby are consummated. The Borrower further agrees to pay, and to save the Facility Agent and the Lenders harmless from all liability for, any stamp, recording, documentary or other similar taxes arising from the execution, delivery or enforcement of this Agreement or the borrowing hereunder or any other Loan Documents. The Borrower also agrees to reimburse the Facility Agent and each Lender upon demand for all reasonable out-of-pocket expenses (including reasonable attorneys fees and legal expenses) incurred by the Facility Agent or such Lender in connection with (x) the negotiation of any restructuring or work-out, whether or not consummated, of any Obligations and (y) the enforcement of any Obligations.
SECTION 11.4. Indemnification. In consideration of the execution and delivery of this Agreement by each Lender and the extension of the Commitments, the Borrower hereby indemnifies and holds harmless the Facility Agent, each Lender and each of their respective Affiliates and their respective officers, advisors, directors and employees (collectively, the Indemnified Parties) from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of a defense in connection therewith), in each case arising out of or in connection with or by reason of this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby or any actual or proposed use of the proceeds of the Loans (collectively, the Indemnified Liabilities), except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Partys gross negligence or willful misconduct or the material breach by such Indemnified Party of its obligations under this Agreement, any other Loan Document,
the BpiFAE Insurance Policy or Interest Stabilisation Agreement and which breach is not attributable to the Borrowers own breach of the terms of this Agreement or any other Loan Document or is a claim, damage, loss, liability or expense which would have been compensated under other provisions of the Loan Documents but for any exclusions applicable thereunder.
In the case of an investigation, litigation or other proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, any of its directors, security holders or creditors, an Indemnified Party or any other person or an Indemnified Party is otherwise a party thereto. Each Indemnified Party shall (a) furnish the Borrower with prompt notice of any action, suit or other claim covered by this Section 11.4, (b) not agree to any settlement or compromise of any such action, suit or claim without the Borrowers prior consent, (c) shall cooperate fully in the Borrowers defense of any such action, suit or other claim (provided that the Borrower shall reimburse such indemnified party for its reasonable out-of-pocket expenses incurred pursuant hereto) and (d) at the Borrowers request, permit the Borrower to assume control of the defense of any such claim, other than regulatory, supervisory or similar investigations, provided that (i) the Borrower acknowledges in writing its obligations to indemnify the Indemnified Party in accordance with the terms herein in connection with such claims, (ii) the Borrower shall keep the Indemnified Party fully informed with respect to the conduct of the defense of such claim, (iii) the Borrower shall consult in good faith with the Indemnified Party (from time to time and before taking any material decision) about the conduct of the defense of such claim, (iv) the Borrower shall conduct the defense of such claim properly and diligently taking into account its own interests and those of the Indemnified Party, (v) the Borrower shall employ counsel reasonably acceptable to the Indemnified Party and at the Borrowers expense, and (vi) the Borrower shall not enter into a settlement with respect to such claim unless either (A) such settlement involves only the payment of a monetary sum, does not include any performance by or an admission of liability or responsibility on the part of the Indemnified Party, and contains a provision unconditionally releasing the Indemnified Party and each other indemnified party from, and holding all such persons harmless, against, all liability in respect of claims by any releasing party or (B) the Indemnified Party provides written consent to such settlement (such consent not to be unreasonably withheld or delayed). Notwithstanding the Borrowers election to assume the defense of such action, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such action and the Borrower shall bear the fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Borrower to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the Borrower and the Indemnified Party and the Indemnified Party shall have concluded that there may be legal defenses available to it which are different from or additional to those available to the Borrower and determined that it is necessary to employ separate counsel in order to pursue such defenses (in which case the Borrower shall not have the right to assume the defense of such action on the Indemnified Partys behalf), (iii) the Borrower shall not have employed counsel reasonably acceptable to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the institution of such action, or (iv) the Borrower authorizes the Indemnified Party to employ separate counsel at the Borrowers expense. The Borrower acknowledges that none of the Indemnified Parties shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Borrower or any of its security holders or creditors for or in connection with the transactions
contemplated hereby, except to the extent such liability is determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Partys gross negligence or willful misconduct. In no event, however, shall any Indemnified Party be liable on any theory of liability for any special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings). If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.
SECTION 11.5. Survival. The obligations of the Borrower under Sections 4.3, 4.4, 4.5, 4.6, 4.7, 11.3 and 11.4 and the obligations of the Lenders under Section 10.1, shall in each case survive any termination of this Agreement and the payment in full of all Obligations. The representations and warranties made by the Borrower in this Agreement and in each other Loan Document shall survive the execution and delivery of this Agreement and each such other Loan Document.
SECTION 11.6. Severability. Any provision of this Agreement or any other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such provision and such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or such Loan Document or affecting the validity or enforceability of such provision in any other jurisdiction.
SECTION 11.7. Headings. The various headings of this Agreement and of each other Loan Document are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or such other Loan Document or any provisions hereof or thereof.
SECTION 11.8. Execution in Counterparts, Effectiveness, etc. This Agreement may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. This Agreement, as a novated and amended Agreement, shall become effective upon the occurrence of the Novation Effective Time under, and as defined in, the Novation Agreement.
SECTION 11.9. Third Party Rights. Notwithstanding the provisions of the Contracts (Rights of Third Parties) Act 1999, no term of this Agreement is enforceable by a person who is not a party to it with the exception of BpiFAE and Natixis.
SECTION 11.10. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns; provided that:
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 BpiFAE; and
b) the rights of sale, assignment and transfer of the Lenders are subject to Section 11.11.
SECTION 11.11. Sale and Transfer of the Loan; Participations in the Loan. Each Lender may assign its Percentage or portion of the Loan to one or more other Persons (a New Lender), or sell participations in its Percentage or portion of the Loan to one or more other Persons; provided that, in the case of assignments where the Fixed Rate applies, such New Lender (other than BpiFAE or CAFFIL as assignee of all or any of SFILs rights as Lender following the enforcement of the security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, and subject as provided in Section 11.11.1(iv)) enters into an Interest Stabilisation Agreement.
SECTION 11.11.1. Assignments
(i) Any Lender with the prior written consents of the Borrower and the Facility Agent (which consents shall not be unreasonably delayed or withheld and which consent, in the case of the Borrower, shall be deemed to have been given in the absence of a written notice delivered by the Borrower to the Facility Agent, on or before the fifth Business Day after receipt by the Borrower of such Lenders request for consent, stating, in reasonable detail, the reasons why the Borrower proposes to withhold such consent) may at any time (and from time to time) assign or transfer to one or more commercial banks or other financial institutions all or any fraction of such Lenders portion of the Loan.
(ii) Any Lender, with notice to the Borrower and the Facility Agent, and, notwithstanding the foregoing clause (i), without the consent of the Borrower, or the Facility Agent may assign or transfer (A) to any of its Affiliates, (B) to SFIL or (C) following the occurrence and during the continuance of an Event of Default under Sections 8.1.1, 8.1.4(a) or 8.1.5, to any other Person, in each case, all or any fraction of such Lenders portion of the Loan.
(iii) Any Lender may (notwithstanding the foregoing clauses, and without notice to, or consent from, the Borrower or the Facility Agent) assign or charge all or any fraction of its portion of the Loan to any federal reserve or central bank as collateral security in connection with the extension of credit or support by such federal reserve or central bank to such Lender.
(iv) SFIL may (notwithstanding the foregoing clauses, and without notice to, or consent from, the Borrower or the Facility Agent) assign, charge or otherwise grant security over all or any fraction of its portion of the Loan and of its rights as Lender to CAFFIL as collateral security in connection with the extension of credit or support by CAFFIL to SFIL in respect of this Agreement and the BpiFAE Enhanced Guarantee, provided that at the time of the assignment, charge or grant of security CAFFIL is an Affiliate of SFIL and that such assignment, charge or other security is on terms that (i) CAFFIL shall not have any rights to assign, charge or grant any security over such rights to any other person (other than to BpiFAE pursuant to and in accordance with the BpiFAE Enhanced Guarantee) without the prior written consent of the Borrower, (ii) CAFFIL shall only be entitled to enforce its rights under such assignment, charge or other security without the prior written consent of the Borrower if at that time it remains an Affiliate of SFIL, (iii) prior to any enforcement such assignment, charge or other security, the Borrower and the Facility Agent shall continue to deal solely and directly with SFIL in connection with its rights and obligations as Lender under this Agreement and other Loan Documents (subject to any payment instructions given by SFIL), (iv) for the avoidance of doubt, the Borrowers rights and obligations under this
Agreement shall not be increased or affected (including, without limitation, the right to pay Fixed Rate under Section 3.3.1) as a result of such assignment, charge or security or any enforcement thereof, (v) the Borrower shall not be liable 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 to SFIL had no such assignment, charge or other security been granted and (vi) without prejudice to SFILs obligations under that Section, CAFFIL shall be bound by the confidentiality provisions set forth in Section 11.15. in relation to any information to which it applies to the same extent as required of the Lenders. For the avoidance of doubt: (A) if CAFFIL becomes a Lender under this Agreement in respect of any portion of the Loan following enforcement of any assignment, charge or other security granted to it by SFIL pursuant to this Section 11.11.1(iv), it shall have the same rights to assign or transfer all or any fraction of such portion of the Loan on and subject to the same terms and conditions as are set forth in this Agreement for assignments and transfers by other Lenders and (B) CAFFIL may not enforce its rights under any such assignment, charge or other security by assigning or transferring all or any fraction of SFILs portion of the Loan or any of its rights or obligations under this Agreement or other Loan Documents except pursuant to an assignment or transfer to a commercial bank or other financial institution on and subject to the same terms and conditions as are set forth in this Agreement for assignments and transfers by Lenders.
(v) No Lender may (notwithstanding the foregoing clauses) assign or transfer any of its rights under this Agreement unless it has given prior written notification of the transfer to BpiFAE and (if the Loan is accruing interest at the Fixed Rate) Natixis DAI and has obtained a prior written consent from BpiFAE and Natixis DAI and any Assignee Lender (other than BpiFAE and CAFFIL as assignee of all or any of SFILs rights as Lender following the enforcement of the security granted pursuant to paragraph (iv) of Section 11.11.1 in connection with the BpiFAE Enhanced Guarantee, subject as provided in Section 11.11.1(iv)) is, if the Fixed Rate applies, eligible to benefit from the CIRR stabilisation. Any assignment or transfer shall comply with the terms of the BpiFAE Insurance Policy.
(vi) Nothing in this Section 11.11.1 shall prejudice the right of the Lender to assign its rights under this Agreement to BpiFAE, if such assignment is required to be made by that Lender to BpiFAE in accordance with the BpiFAE Insurance Policy or the BpiFAE Enhanced Guarantee or, if the Lender is SFIL, to CAFFIL (but only if CAFFIL is, at that time, an Affiliate of SFIL) upon the enforcement of any security granted pursuant, and subject to the provisions of paragraph (iv) of Section 11.11.1, in connection with the BpiFAE Enhanced Guarantee.
Each Person described in the foregoing clauses as being the Person to whom such assignment or transfer is to be made, is hereinafter referred to as an Assignee Lender. Assignments in a minimum aggregate amount of $25,000,000 (or, if less, all of such Lenders portion of the Loan and Commitment) (which assignment or transfer shall be of a constant, and not a varying, percentage of such Lenders portion of the Loan) are permitted; provided that the Borrower and the Facility Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned or transferred to an Assignee Lender until:
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.
From and after the date that the Facility Agent accepts such Lender Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed automatically to have become a party hereto and to the extent that rights and obligations hereunder have been assigned or transferred to such Assignee Lender in connection with such Lender Assignment Agreement, shall have the rights and obligations of a Lender hereunder and under the other Loan Documents, and (y) the assignor Lender, to the extent that rights and obligations hereunder have been assigned or transferred by it, shall be released from its obligations hereunder and under the other Loan Documents, other than any obligations arising prior to the effective date of such assignment. Except to the extent resulting from a subsequent change in law, in no event shall the Borrower be required to pay to any Assignee Lender 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 such assignment been made. Such assignor Lender or such Assignee Lender must also pay a processing fee to the Facility Agent upon delivery of any Lender Assignment Agreement in the amount of $5,000 (and shall also reimburse the Facility Agent and Natixis for any reasonable out-of-pocket costs, including reasonable attorneys fees and expenses, incurred in connection with the assignment).
SECTION 11.11.2. Participations. Any Lender may at any time sell to one or more commercial banks or other financial institutions (each of such commercial banks and other financial institutions being herein called a Participant) participating interests in its Loan; provided that:
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 Lenders 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 Participants 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 Participants interest in that Lenders 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.
The Borrower acknowledges and agrees that each Participant, for purposes of Sections 4.2(c), 4.3, 4.4, 4.5, 4.6 and clause (e) of 7.1.1, shall be considered a Lender.
SECTION 11.11.3. Register. The Facility Agent shall maintain at its address referred to in Section 11.2 a copy of each Lender Assignment Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment(s) of, and principal amount of the Loan owing to, each Lender from time to time (the Register). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Facility Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
SECTION 11.11.4. Rights of BpiFAE to payments. The Borrower acknowledges that, immediately upon any payment by BpiFAE (i) of any amounts to a Lender under the BpiFAE Insurance Policy, BpiFAE will be automatically subrogated to the extent of such payment to the rights of that Lender under the Loan Documents or (ii) of any amount under the BpiFAE Enhanced Guarantee and the enforcement of any related security granted by SFIL to any of its Affiliates, which may benefit BpiFAE after payment by BpiFAE under the BpiFAE Enhanced Guarantee, BpiFAE will be automatically entitled to receive the payments normally due to SFIL under the Loan Documents (but, for the avoidance of doubt, such payments shall continue to be made by the Borrower to the Facility Agent in accordance with the provisions of Section 4.8 or any other relevant provisions of this Agreement, as applicable).
SECTION 11.12. Other Transactions. Nothing contained herein shall preclude the Facility Agent or any Lender from engaging in any transaction, in addition to those contemplated by this Agreement or any other Loan Document, with the Borrower or any of its Affiliates in which the Borrower or such Affiliate is not restricted hereby from engaging with any other Person.
SECTION 11.13. BpiFAE Insurance Policy.
SECTION 11.13.1. Terms of BpiFAE Insurance Policy
a) The BpiFAE Insurance Policy will cover 100% of the Loan.
b) The BpiFAE 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, BpiFAE 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 BpiFAE 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:
R = P x (1 (1 / (1+2.35%)) x (N / (12 * 365)) x 80%
where:
R means the amount of the refund;
P means the amount of the prepayment;
N means the number of days between the effective prepayment date and Final Maturity; and
P x (1 (1 / (1+2.35%)) corresponds to the share of the financed BpiFAE Premium corresponding to P.
SECTION 11.13.2. Obligations of the Borrower. Provided that the BpiFAE Insurance Policy complies with Section 11.13.1 and remains in full force and effect, the Borrower shall pay the balance of the BpiFAE Premium calculated in accordance with Section 11.3.1(b) and still owing to BpiFAE on the Actual Delivery Date to BpiFAE on the Actual Delivery Date by directing the Agent in the Loan Request to pay the Additional Advance in respect of the BpiFAE Premium directly to BpiFAE.
SECTION 11.13.3. Obligations of the ECA Agent and the Lenders.
a) Promptly upon receipt of the BpiFAE Insurance Policy from BpiFAE, the ECA Agent shall (subject to any confidentiality undertakings given to BpiFAE by the ECA Agent pursuant to the terms of the BpiFAE 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 BpiFAE under the BpiFAE Insurance Policy as necessary to ensure that the Lenders obtain the support of BpiFAE pursuant to the BpiFAE 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 BpiFAE 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 BpiFAE 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.
d) The ECA Agent shall:
(i) make written requests to BpiFAE seeking a reimbursement of the BpiFAE Premium in the circumstances described in Section 11.13.1(c) promptly after the relevant cancellation or prepayment and (subject to any confidentiality undertakings given to BpiFAE by the ECA Agent pursuant to the terms of the BpiFAE Insurance Policy) provide a copy of the request to the Borrower;
(ii) use its reasonable endeavours to maximize the amount of any reimbursement of the BpiFAE Premium to which the ECA Agent is entitled;
(iii) pay to the Borrower (in the same currency as the refund received from BpiFAE) the full amount of any reimbursement of the BpiFAE Premium that the ECA Agent receives from BpiFAE within two (2) Business Days of receipt with same day value; and
(iv) relay the good faith concerns of the Borrower to BpiFAE regarding the amount of any reimbursement to which the ECA Agent is entitled, it being agreed that the ECA Agents obligation shall be no greater than simply to pass on to BpiFAE the Borrowers concerns.
SECTION 11.14. Law and Jurisdiction
SECTION 11.14.1. Governing Law. This Agreement and any non-contractual obligations arising out of or in respect of this Agreement shall in all respects be governed by and interpreted in accordance with English Law.
SECTION 11.14.2. Jurisdiction. For the exclusive benefit of the Facility Agent and the Lenders, the parties to this Agreement irrevocably agree that the courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with this Agreement and that any proceedings may be brought in those courts. The Borrower irrevocably waives any objection which it may now or in the future have to the laying of the venue of any proceedings in any court referred to in this Section, and any claim that those proceedings have been brought in an inconvenient or inappropriate forum.
SECTION 11.14.3. Alternative Jurisdiction. Nothing contained in this Section shall limit the right of the Facility Agent or the Lenders to commence any proceedings against the Borrower in any other court of competent jurisdiction nor shall the commencement of any proceedings against the Borrower in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or not.
SECTION 11.14.4. Service of Process. Without prejudice to the right of the Facility Agent or the Lenders to use any other method of service permitted by
law, the Borrower irrevocably agrees that any writ, notice, judgment or other legal process shall be sufficiently served on it if addressed to it and left at or sent by post to RCL Cruises Ltd., presently at Building 3, The Heights Brooklands, Weybridge, Surrey, KT13 ONY, Attention: General Counsel, and in that event shall be conclusively deemed to have been served at the time of leaving or, if posted, at 9:00 am on the third Business Day after posting by prepaid first class registered post.
SECTION 11.15. Confidentiality. Each of the Facility Agent and the Lenders agrees to maintain and to cause its Affiliates to maintain the confidentiality of all information provided to it by the Borrower or any Subsidiary of the Borrower, or by the Facility Agent on the Borrowers or such Subsidiarys behalf, under this Agreement, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement or in connection with other business now or hereafter existing or contemplated with the Borrower or any Subsidiary, except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by it or its Affiliates or their respective directors, officers, employees and agents, or (ii) was or becomes available on a non-confidential basis from a source other than the Borrower or any of its Subsidiaries so long as such source is not, to its knowledge, prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Borrower or any of its Affiliates; provided, however, that it may disclose such information (A) at the request or pursuant to any requirement of any self-regulatory body, governmental body, agency or official to which the Facility Agent, any Lender or any of their respective Affiliates is subject or in connection with an examination of the Facility Agent, such Lender or any of their respective Affiliates by any such authority or body, including without limitation the Republic of France and any French Authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable requirement of law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Facility Agent, any Lender or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder; (F) to the Facility Agent or such Lenders independent auditors, counsel, and any other professional advisors of the Facility Agent or such Lender who are advised of the confidentiality of such information; (G) to any participant or assignee, provided that such Person agrees to keep such information confidential to the same extent required of the Facility Agent and the Lenders hereunder; (H) as to the Facility Agent, any Lender or their respective Affiliates, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Borrower or any Subsidiary is party with the Facility Agent, such Lender or such Affiliate; (I) to its Affiliates and its Affiliates directors, officers, employees, professional advisors and agents, provided that each such Affiliate, director, officer, employee, professional advisor or agent shall keep such information confidential to the same extent required of the Facility Agent and the Lenders hereunder; (J) to any other party to the Agreement and (K) to the French Authorities and any Person to whom information is required to be disclosed by the French Authorities. Each of the Facility Agent and the Lenders shall be responsible for any breach of this Section 11.15 by any of its Affiliates or any of its or its Affiliates directors, officers, employees, professional advisors and agents.
SECTION 11.16. French Authority Requirements. The Borrower acknowledges that:
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.
SECTION 11.17. Waiver of immunity. To the extent that the Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its assets, the Borrower hereby irrevocably waives such immunity in respect of its obligations under this Agreement and the other Loan Documents.
SECTION 11.18. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
b) the effects of any Bail-in Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
IN WITNESS WHEREOF, the parties hereto have caused this Hull No. K34 Credit Agreement to be executed by their respective officers thereunto duly authorized as of the day and year first above written.
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ROYAL CARIBBEAN CRUISES LTD. | ||||
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Address: |
1050 Caribbean Way | |||
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Miami, Florida 33132 | |||
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Facsimile No.: |
(305) 539-0562 | |||
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Email: |
agibson@rccl.com | |||
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bstein@rccl.com | |||
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Attention: |
Vice President, Treasurer | |||
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With a copy to: |
General Counsel | |||
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SUMITOMO MITSUI BANKING CORPORATION EUROPE LIMITED, PARIS BRANCH as ECA Agent and a Lender | ||||
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Commitment |
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4.25% of the Maximum Loan Amount |
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Title: | ||||
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1/3/5 rue Paul Cézanne | ||||
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75008 Paris | ||||
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France | ||||
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Attention: Cedric Le Duigou | ||||
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Guillaume Branco | ||||
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Cam Truong | ||||
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Claire Lucien | ||||
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Fax No: |
+33 1 44 90 48 01 | |||
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Tel No: |
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Cedric Le Duigou: |
+33 1 44 90 48 83 | |||
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Guillaume Branco: |
+33 1 44 90 48 71 | |||
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Cam Truong: |
+33 1 44 90 48 51 | |||
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Claire Lucien: |
+33 1 44 90 48 49 | |||
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Helene Ly: |
+33 1 44 90 48 76 | |||
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E-mail : | ||||
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cedric_leduigou@fr.smbcgroup.com | ||||
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guillaume_branco@fr.smbcgroup.com | ||||
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cam_truong@fr.smbcgroup.com | ||||
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claire_lucien@fr.smbcgroup.com | ||||
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helene_ly@fr.smbcgroup.com | ||||
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FRPAGTFD@fr.smbcgroup.com | ||||
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CITIBANK N.A., LONDON BRANCH as Global Coordinator and a Lender | |||
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Commitment |
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21% of the Maximum Loan Amount |
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Citigroup Centre | |||
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Canada Square | |||
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London E14 5LB | |||
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United Kingdom | |||
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Attention: |
Guido Cicolani | ||
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Cristiana Ilievici | ||
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Konstantinos Frangos | ||
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Kara Catt | ||
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Romina Coates | ||
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Fax No: |
+44 20 7986 4881 | ||
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Tel No: |
+44 20 7986 3035 / | ||
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+44 20 7508 0344 | ||
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+44 20 7986 4824 | ||
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+44 20 7986 5017 | ||
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E-mail: | |||
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guido.cicolani@citi.com | |||
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Cristiana.ilievici@citi.com | |||
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konstantinos.frangos@citi.com | |||
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kara.catt@citi.com | |||
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romina.coates@citi.com | |||
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BANCO BILBAO VIZCAYA ARGENTARIA, PARIS BRANCH as Lender | |||
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Commitment |
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0.75% of the Maximum Loan Amount |
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Name: | |||
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Title: | |||
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29 avenue de lOpéra | |||
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75001 Paris | |||
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France | |||
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Attention: |
David Peyroux | ||
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Laura Luca de Tena | ||
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Maria Merodio | ||
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Fax No: |
+33 1 44 86 84 45 | ||
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Tel No: |
+33 1 44 86 83 98 / | ||
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+33 1 44 86 83 21 / | ||
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+33 1 44 86 84 45 | ||
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Email: |
david.peyroux@bbva.com / | ||
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laura.luca@bbva.com / | ||
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asuncion.merodio@bbva.com | ||
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BANCO SANTANDER, S.A. PARIS BRANCH as Lender | ||||
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Commitment |
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15% of the Maximum Loan Amount |
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Lending Office: | ||||
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374, rue Saint-Honoré | ||||
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75001 Paris | ||||
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France | ||||
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Operational address: | ||||
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Ciudad Financiera | ||||
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Avenida de Cantabria s/n | ||||
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Edificio Encinar 2a planta | ||||
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28600 Boadilla del Monte | ||||
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Spain | ||||
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Fax No: |
+34 91 257 1682 | |||
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Attention: |
Elise Regnault | |||
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Beatriz de la Mata | |||
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Ecaterina Mucuta | |||
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Vanessa Berrio Vélez | |||
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Ana Sanz Gómez | |||
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Tel No: |
+34 912893722 | |||
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+1 212-297-2942 | |||
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+33 1 53 53 70 46 | |||
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+34 91 289 10 28 | |||
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+34 91 289 17 90 | |||
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E-mail: | ||||
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elise.regnault@gruposantander.com | ||||
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bdelamata@santander.us | ||||
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ecaterina.mucuta@gruposantander.com | ||||
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vaberrio@gruposantander.com | ||||
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anasanz@gruposantander.com | ||||
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HSBC FRANCE as Lender | |||
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Commitment |
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5.3% of the Maximum Loan Amount |
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Title: |
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HSBC France Global Banking Agency | |||
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Attention: |
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E-mail: Guillaume.gladu@hsbc.fr alexandra.penda@hsbc.fr | |||
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HSBC France 103 avenue des Champs Elysées 75008 Paris France | |||
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Attention: |
Julie Bellais Celine Karsenty | ||
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E-mail: julie.bellais@hsbc.fr celine.karsenty@hsbc.fr | |||
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SOCIÉTÉ GÉNÉRALE as Lender | ||
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Commitment |
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11.52% of the Maximum Loan Amount |
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Lending Office:
29 Boulevard Haussmann 75009 Paris France
Address for Operational / Servicing matters:
Attention: Mouna KHACHABI
Société Générale 189, rue dAubervilliers 75886 PARIS CEDEX 18 France
Tel No: +33 1 58 98 30 78
Email : mouna.khachabi@sgcib.com;
For Credit matters:
OPER/FIN/SMO/EXT
Attention: Olivier Gueguen and Muriel Baumann
Tel No: +33 (0)1 42 13 07 52 / +33 (0)1 58 98 22 761
Fax No: +33 1 46 92 45 97
Email: muriel.baumann@sgcib.com olivier. gueguen@sgcib.com |
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SFIL as Lender | ||
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42.23% of the Maximum Loan Amount |
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1-3, rue de Passeur de Boulogne CS 80054 92861 Issy-les-Moulineaux Cedex 9 France
Contact Person Loan Administration Department: Direction du Crédit Export: Pierre-Marie Debreuille / Anne Crépin Direction des Opérations: Dominique Brossard / Patrick Sick
Telephone: Pierre-Marie Debreuille +33 1 73 28 87 64 Anne Crépin +33 1 73 28 88 59 Dominique Brossard +33 1 73 28 91 93 Patrick Sick +33 1 73 28 87 66
Email: pierre-marie.debreuille@sfil.fr anne.crepin@sfil.fr dominique.brossard@sfil.fr patrick.sick@sfil.fr refinancements-export@sfil.fr creditexport_ops@sfil.fr
Fax: + 33 1 73 28 85 04 |
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CITIBANK EUROPE PLC, UK BRANCH | ||
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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 |
Exhibit E-1
DELIVERY NON-YARD COSTS CERTIFICATE
To: Citibank Europe plc, UK Branch |
Date: |
2018 |
Hull No. K34 at Chantiers de lAtlantique S.A. (previously known as STX France S.A.) (the Vessel)
We Royal Caribbean Cruises Ltd., a Liberian corporation registered with the Ministry of Foreign Affairs of the Republic of Liberia under number C-38863, whose registered office is at 80 Broad Street, Monrovia, Republic of Liberia, and whose principal office is at 1050 Caribbean Way, Miami, Florida 33132, United States of America (RCCL), refer to the facility agreement dated 22 June 2016 (as novated, amended and restated on the Actual Delivery Date pursuant to a novation agreement dated 22 June 2016 (as amended)) entered into between RCCL, as borrower, Citibank N.A., London Branch as global coordinator, Sumitomo Mitsui Banking Corporation Europe Limited, Paris Branch, as ECA agent, Citibank Europe plc, UK Branch, as Facility Agent, the mandated lead arrangers referred to therein and the banks and financial institutions referred to therein as lenders, regarding the Vessel (the Facility Agreement).
Words and expressions defined in the Facility Agreement shall have the same meanings when used in this Delivery Non-Yard Costs Certificate unless the context otherwise requires.
This is the Delivery Non-Yard Costs Certificate referred to in the Facility Agreement.
We hereby confirm on the date hereof that:
1 we have paid an amount equal to EUR [·] to the relevant suppliers of equipment and/or services relating to the Non-Yard Costs;
2 an amount of EUR [·] remains payable to the relevant suppliers of equipment and/or services relating to the Non-Yard Costs;
3 the aggregate of the amounts in paragraphs 1 and 2 above is not more than the Maximum Non-Yard Costs Amount; and
4 the equipment and/or services relating to the Non-Yard Costs paid by us prior to the Actual Delivery Date and referred to in paragraph 1 above to the relevant suppliers have been properly supplied, installed and completed on the Vessel, as applicable and, in addition and to the best of our knowledge, [·] per cent. ([·]%) of the equipment and/or services relating to the Non-Yard Costs have been supplied, installed and completed on the Vessel and accordingly in excess of eighty per cent. (80%) of the equipment and/or services relating to the Non-Yard Costs have been supplied, installed and completed on the Vessel.
ROYAL CARIBBEAN CRUISES LTD.
Name:
Position:
Chantiers de lAtlantique S.A. hereby acknowledges the contents of paragraph 4 of this Certificate by countersignature:
CHANTIERS DE LATLANTIQUE S.A.
Name:
Position:
Exhibit E-2
FINAL NON-YARD COSTS CERTIFICATE
Date: [·]
To: Citibank Europe plc, UK Branch
as Facility Agent
Hull No. K34 at Chantiers de lAtlantique S.A. (previously known as STX France S.A.) (the Vessel)
We Royal Caribbean Cruises Ltd., a Liberian corporation registered with the Ministry of Foreign Affairs of the Republic of Liberia under number C-38863, whose registered office is at 80 Broad Street, Monrovia, Republic of Liberia, and whose principal office is at 1050 Caribbean Way, Miami, Florida 33132, United States of America (RCCL), refer to the facility agreement dated 22 June 2016 (as novated, amended and restated on the Actual Delivery Date pursuant to a novation agreement dated 22 June 2016 (as amended)) entered into between RCCL, as borrower, Citibank N.A., London Branch as global coordinator, Sumitomo Mitsui Banking Corporation Europe Limited, Paris Branch, as ECA agent, Citibank Europe plc, UK Branch, as Facility Agent, the mandated lead arrangers referred to therein and the banks and financial institutions referred to therein as lenders, regarding the Vessel (the Facility Agreement).
Words and expressions defined in the Facility Agreement shall have the same meanings when used in this Final Non-Yard Costs Certificate unless the context otherwise requires.
This is the Final Non-Yard Costs Certificate referred to in the Facility Agreement.
We hereby confirm on the date hereof that:
1 we have paid EUR [·] to the relevant suppliers of equipment and/or services relating to the Non-Yard Costs (representing an additional amount of EUR [·] from the amount referred to in paragraph 1 of the Delivery Non-Yard Costs Certificate); and
2 the equipment and/or services relating to the Non-Yard Costs paid by us as at the date hereof and referred to in paragraph 1 above to the relevant suppliers have been properly supplied, installed and completed on the Vessel, as applicable.
ROYAL CARIBBEAN CRUISES LTD.
Name: [·]
Position: [·]
Schedule 5
Amendments to Agency and Trust Deed
The Agency and Trust Deed shall be amended and restated in accordance with the form of amended and restated Agency and Trust Deed set out in the Annex to this Schedule.
Private & Confidential |
EXECUTION VERSION |
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Dated 22 June 2016 |
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(as amended and restated by a First 5 October 2018) |
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CITIBANK EUROPE PLC, UK BRANCH |
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as Facility Agent |
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CITICORP TRUSTEE COMPANY LIMITED |
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as Security Trustee |
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CITIBANK N.A., LONDON BRANCH |
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as Global Coordinator |
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SUMITOMO MITSUI BANKING CORPORATION |
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EUROPE LIMITED, PARIS BRANCH |
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as ECA Agent |
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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 |
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as Mandated Lead Arrangers |
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THE BANKS AND FINANCIAL INSTITUTIONS |
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LISTED IN SCHEDULE 1 |
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as Lenders |
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and |
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ROYAL CARIBBEAN CRUISES LTD. |
(7) |
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as Borrower |
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AGENCY AND TRUST DEED
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NORTON ROSE FULBRIGHT
Contents
Clause |
Page | |
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1 |
Introduction, definitions and interpretation |
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2 |
Security Trustee |
4 |
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Declaration of trust: supplementary provisions |
12 |
4 |
Application of proceeds |
14 |
5 |
Agents and Finance Parties indemnities |
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Custody of deeds; illegality |
16 |
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Assignments by the Lenders |
17 |
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Effect of Agreement |
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Miscellaneous |
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Agreement to provide power of attorney |
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11 |
Notices and other matters |
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Contracts (Rights of Third Parties) Act 1999 |
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13 |
Governing law and jurisdiction |
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Schedule 1 The Lenders |
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THIS AGREEMENT is dated 22 June 2016 (as amended and restated by a first supplemental agreement dated 5 October 2018) and made BETWEEN:
(1) CITIBANK EUROPE PLC, UK BRANCH, as Facility Agent;
(2) CITICORP TRUSTEE COMPANY LIMITED, as Security Trustee;
(3) CITIBANK N.A., LONDON BRANCH, as Global Coordinator;
(4) SUMITOMO MITSUI BANKING CORPORATION EUROPE LIMITED, PARIS BRANCH, as ECA Agent;
(5) 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;
(6) THE BANKS AND FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1, as Lenders; and
(7) ROYAL CARIBBEAN CRUISES LTD., as Borrower.
1 Introduction, definitions and interpretation
Introduction
1.1 The parties are entering into this Agreement in connection with:
(a) a facility agreement dated 22 June 2016 (the Original Facility Agreement) relating to a loan of up to an aggregate amount of 555,288,000 and made between (1) Azairemia Finance Limited as original borrower, (2) Citibank Europe plc, UK Branch as Facility Agent, (3) Citicorp Trustee Company Limited as Security Trustee, (4) Citibank N.A., London Branch as Global Coordinator, (5) HSBC France as French Coordinating Bank, (6) Sumitomo Mitsui Banking Corporation Europe Limited, Paris Branch as ECA Agent, (7) the Mandated Lead Arrangers and (8) the banks and financial institutions listed in Schedule 1 as Lenders, as novated and amended and restated by the novation agreement dated 22 June 2016 (as supplemented and amended, the Novation Agreement (the Original Facility Agreement as novated and amended and restated by the Novation Agreement, the Facility Agreement)) between the parties to the Original Facility Agreement and the Borrower; and
(b) the Escrow Account Security,
in order, inter alia, to provide for the appointment of Citicorp Trustee Company Limited as Security Trustee.
Definitions
1.2 Words and expressions defined in the Facility Agreement (including words and expressions defined by reference to another document) shall, unless the context otherwise requires or unless otherwise defined herein, have the same meanings when used herein. In addition, in this Agreement:
Affiliate means in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.
Agents means each of the Facility Agent, the ECA Agent and the Security Trustee and Agent shall mean any of them.
Charged Assets means any property, assets and/or rights over which security is granted and/or created under the Escrow Account Security.
ECA Agent means Sumitomo Mitsui Banking Corporation Europe Limited, Paris Branch acting as export credit agent pursuant to this Agreement for itself and any other banks or financial institutions who are or may become Lenders in the future.
Enforcement Date means the first date on which active steps are taken to enforce and/or realise the security or other assurances created or conferred by the Escrow Account Security.
Escrow Account Security shall have the meaning given to it in the Facility Agreement and shall, when used herein, be deemed to include any Further Assurance Deed.
Expenses means the aggregate at any relevant time (to the extent that the same has not been received or recovered by the Security Trustee) of:
(a) all duly evidenced expenses (including, in particular, legal, insurance adviser, printing, out of pocket expenses and late payment interest) properly incurred and any cost, loss (excluding loss of profit) or liability sustained or incurred by the Security Trustee or any Receiver in connection with the exercise of the powers referred to in or granted by the Loan Documents or otherwise payable by the Borrower to the Security Trustee in accordance with any provision of any of the Loan Documents; and
(b) interest on all such unpaid expenses, costs, losses and liabilities from the date falling ten Business Days after the date on which a demand for the same was made by the Security Trustee until the date of receipt or recovery thereof (whether before or after judgment) at the Floating Rate plus two per cent per annum.
Facility Agent means Citibank Europe plc, UK Branch acting as agent pursuant to this Agreement for itself and any other banks or financial institutions who are or may become Lenders in the future and includes its successors in title.
Finance Parties means the Lenders, the Facility Agent, the ECA Agent, the Global Coordinator and the Security Trustee.
Further Assurance Deed means any document executed or to be executed pursuant to a further assurance covenant or obligation contained in the Escrow Account Security.
Holding Company means, in relation to a person, any other person in respect of which it is a Subsidiary.
Receiver means and includes any receiver and/or manager of any of the Charged Assets appointed under the Escrow Account Security (and whether acting as agent for the Borrower or otherwise).
Release Date means the date, occurring promptly following the NYC Cut Off Date, on which the Facility Agent notifies the parties that the Escrow Account Security can be released following the withdrawal of all amounts standing to the credit of the Escrow Account in accordance with the provisions of Section 2.3f) of the Facility Agreement.
Secured Obligations means the obligations of the Borrower to the Finance Parties under the Facility Agreement and each of the other Loan Documents.
Security Trustee means Citicorp Trustee Company Limited acting as security trustee pursuant to this Agreement for itself and any banks or financial institutions who are or may become Lenders and includes its successors in title.
Trust Property means (a) the security, powers, rights, titles, benefits and interests (both present and future) constituted by and conferred on the Security Trustee under or pursuant to this Agreement and the Escrow Account Security and any notices or acknowledgements or
undertakings given in connection with the Escrow Account Security (including, without limitation, the benefit of all covenants, undertakings, representations, warranties and obligations given, made or undertaken to the Security Trustee in the Escrow Account Security), (b) all moneys, property and other assets payable, paid or transferred to or vested in the Security Trustee or any Receiver or receivable, received or recovered by the Security Trustee or any Receiver pursuant to, or in connection with, this Agreement and the Escrow Account Security and any notices or acknowledgements or undertakings given by the Borrower in connection with the Escrow Account Security from the Borrower or any other person and (c) all money, investments, property and other assets at any time representing or deriving from any of the foregoing, including all interest, income and other sums at any time received or receivable by the Security Trustee or any Receiver in respect of the same (or any part thereof).
Headings
1.3 Clause headings and the table of contents are inserted for convenience of reference only and shall be ignored in the interpretation of this Agreement.
Construction of certain terms
1.4 Clause 1.4 (Construction) of the Original Facility Agreement applies to this Agreement as if set out herein.
Capacity of parties
1.5 References in this Agreement to the Facility Agent, the Security Trustee, the ECA Agent, any Mandated Lead Arranger or any Lender and references to obligations or liabilities of any one or more such persons shall be strictly construed as references to any such person or (as the case may be) obligations or liabilities of any such person solely in its capacity as such.
Effectiveness of Required Lender decision
1.6 Where this Agreement, the Escrow Account Security or any Further Assurance Deed provides for any matter to be determined by reference to the opinion of the Required Lenders or to be subject to the consent or request of the Required Lenders or for any action to be taken on the instructions of the Required Lenders, such opinion, consent, request or instructions shall (as between the Lenders) only be regarded as having been validly given or issued by the Required Lenders if (a) given by the Facility Agent on their behalf and (b) all the Lenders shall have received prior notice of the matter on which such opinion, consent, request or instructions are required to be obtained and the relevant majority of Lenders shall have given or issued such opinion, consent, request or instructions but so that the Borrower and the Security Trustee shall be entitled (and bound) to assume that such notice shall have been duly received by each Lender and that the relevant majority shall have been obtained to constitute Required Lenders whether or not this is the case.
Fees, Indemnity and Costs of Security Trustee
1.7 It is agreed that the provisions of clause 4.6 (Taxes) of the Facility Agreement, clause 11.4 (Indemnification) of the Facility Agreement (subject to clause 1.8) and clause 5.4 (Value Added tax) of the Original Facility Agreement shall apply to the benefit of the Security Trustee, and the Borrower agrees to be bound by such provisions, as if the same were set out in full herein and on the basis that reference to Loan Documents therein or amounts due thereunder include this Agreement, the Escrow Account Security and any Further Assurance Deed or any amounts due under the foregoing. This clause 1.7 and clause 1.8 shall survive the termination of this Agreement, the Escrow Account Security and any Further Assurance Deed.
1.8 The following words in clause 11.4 (Indemnification) of the Facility Agreement are deemed deleted for the purposes of its incorporation herein under clause 1.7 and shall not apply to the Security Trustee:
(a) or the material breach by such Indemnified Party of its obligations under this Agreement, any other Loan Document, the BpiFAE Insurance Policy or Interest Stabilisation Agreement and which breach is not attributable to the Borrowers own breach of the terms of this Agreement or any other Loan Document;
(b) Each Indemnified Party shall (a) furnish the Borrower with prompt notice of any action, suit or other claim covered by this Section 11.4, (b) not agree to any settlement or compromise of any such action, suit or claim without the Borrowers prior consent, (c) shall cooperate fully in the Borrowers defense of any such action, suit or other claim (provided that the Borrower shall reimburse such indemnified party for its reasonable out-of-pocket expenses incurred pursuant hereto) and (d) at the Borrowers request, permit the Borrower to assume control of the defense of any such claim, other than regulatory, supervisory or similar investigations, provided that (i) the Borrower acknowledges in writing its obligations to indemnify the Indemnified Party in accordance with the terms herein in connection with such claims, (ii) the Borrower shall keep the Indemnified Party fully informed with respect to the conduct of the defense of such claim, (iii) the Borrower shall consult in good faith with the Indemnified Party (from time to time and before taking any material decision) about the conduct of the defense of such claim, (iv) the Borrower shall conduct the defense of such claim properly and diligently taking into account its own interests and those of the Indemnified Party, (v) the Borrower shall employ counsel reasonably acceptable to the Indemnified Party and at the Borrowers expense, and (vi) the Borrower shall not enter into a settlement with respect to such claim unless either (A) such settlement involves only the payment of a monetary sum, does not include any performance by or an admission of liability or responsibility on the part of the Indemnified Party, and contains a provision unconditionally releasing the Indemnified Party and each other indemnified party from, and holding all such persons harmless, against, all liability in respect of claims by any releasing party or (B) the Indemnified Party provides written consent to such settlement (such consent not to be unreasonably withheld or delayed). Notwithstanding the Borrowers election to assume the defense of such action, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such action and the Borrower shall bear the fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Borrower to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the Borrower and the Indemnified Party and the Indemnified Party shall have concluded that there may be legal defenses available to it which are different from or additional to those available to the Borrower and determined that it is necessary to employ separate counsel in order to pursue such defenses (in which case the Borrower shall not have the right to assume the defense of such action on the Indemnified Partys behalf), (iii) the Borrower shall not have employed counsel reasonably acceptable to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the institution of such action, or (iv) the Borrower authorizes the Indemnified Party to employ separate counsel at the Borrowers expense..
2 Security Trustee
Appointment of the Security Trustee
2.1 Each of the Finance Parties appoints the Security Trustee as agent and trustee of the Trust Property on the terms set out in this Agreement. By virtue of such appointment, each of the Finance Parties authorises the Security Trustee (whether or not by or through employees or agents) to take such action on such Finance Partys behalf and to exercise such rights, remedies, powers and discretions as are specifically delegated to the Security Trustee by this Agreement and/or the Escrow Account Security and any Further Assurance Deed, together with such powers and discretions as are reasonably incidental thereto.
2.2 It is acknowledged that the appointment of the Facility Agent and the ECA Agent for the purpose of the Facility Agreement is regulated under Article X (The Facility Agent and the ECA Agent) of the Facility Agreement.
Duties
2.3 The Security Trustee shall not have any duties, obligations or liabilities to the Lenders beyond those expressly stated in this Agreement and/or any of the Loan Documents to which it may be or become a party.
2.4 The Security Trustees duties under this Agreement and the other Loan Documents are solely mechanical and administrative in nature.
Instructions to the Agents
2.5 Subject to clauses 2.6, 2.7 and 2.12 below, unless a contrary indication appears, the Security Trustee shall (a) exercise any right, power, authority or discretion vested in it as an agent or otherwise act in accordance with the written instructions given to it by the Required Lenders (or, if so instructed by the Required Lenders refrain from exercising any right, power, authority or discretion vested in it as Security Trustee), (b) not be liable to any person for any act or omission if it acts (or refrains from taking any action) in good faith in accordance with the instructions of the Required Lenders and (c) have no obligation to act and may refrain from acting until so instructed (without liability to any person). Any reference to the instructions of the Required Lenders to the Security Trustee herein or in the Escrow Account Security shall be construed as such instructions of the Facility Agent on behalf of such Required Lenders.
2.6 The Security Trustee shall be entitled to request instructions, or clarification of any direction, from the Facility Agent as to whether, and in what manner, it should exercise or refrain from exercising any rights, powers, authorities and discretions and the Security Trustee may refrain from acting unless and until those instructions or clarification are received by it (without liability to any person).
2.7 In the absence of instructions, the Security Trustee may act (or refrain from acting) as it considers to be in the best interest of the Finance Parties.
2.8 Clause 2.5 above shall not apply in respect of any provision which protects the Security Trustees own position in its personal capacity as opposed to its role as Security Trustee for the Finance Parties.
2.9 The Security Trustee may refrain from acting in accordance with the instructions of the Lenders or any other person until it has received any indemnification and/or security and/or prefunding that it may in its discretion require (which may be greater in extent than that contained in the Loan Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.
Execution of Escrow Account Security
2.10 Each Lender irrevocably authorises the Security Trustee to execute the Escrow Account Security in its capacity as trustee of the Trust Property thereby created.
Authority of Security Trustee
2.11 Subject to clause 2.12 and, where applicable, 2.14(c), the Security Trustee may, with the consent of the Required Lenders (or the Facility Agent on their behalf) or if and to the extent expressly authorised by the other provisions of this Agreement or the Escrow Account Security, concur with the Borrower to amend, modify or otherwise vary or waive breaches of, or defaults under, or otherwise excuse performance of, any provision of any of the Escrow Account Security. Any such action so authorised and effected by the Security Trustee shall be promptly notified to the other Agents and the Lenders and shall be binding on all the Lenders and, if necessary or appropriate, each Lender agrees to execute or re-execute any document, instrument or agreement required to give full effect to any such action. For the purposes of this clause 2.11 it is expressly agreed and acknowledged that the execution of a Further Assurance Deed shall not constitute an amendment or modification to, or variation of, the Escrow Account
Security, and each Lender where applicable further agrees to execute any Further Assurance Deed promptly upon the request of the Security Trustee.
2.12 Except with the prior written consent of all the Lenders (or the Facility Agent on their behalf), the Security Trustee shall not have authority on behalf of the Lenders to agree with the Borrower any amendment to the Escrow Account Security which would:
(a) change any provision of the Escrow Account Security which expressly or impliedly requires the approval or consent of all the Lenders such that the relevant approval or consent may be given otherwise than with the sanction of all the Lenders;
(b) change this clause 2.12 or clause 4.2; or
(c) (save to the extent expressly required under this Agreement or any of the Loan Documents) release the Borrower from the security constituted by the Escrow Account Security; or
(d) (save to the extent expressly required under this Agreement or any of the Loan Documents) release any of the Charged Assets from the security constituted by the Escrow Account Security; or
(e) (save to the extent expressly required under this Agreement or any of the Loan Documents) release the Borrower from any of its indemnity or other assurance obligations under any of the Loan Documents.
2.13 Unless otherwise stated in any provision of the Loan Documents, any matter under the Escrow Account Security requiring the decision, agreement, determination, consent or approval of the Security Trustee, shall be construed as requiring the decision, agreement, determination, consent or approval of the Required Lenders.
Liability of Security Trustee
2.14 The Security Trustee shall not:
(a) be obliged:
(i) to request any certificate or opinion under any provision of the Escrow Account Security; or
(ii) to make any enquiry as to any breach or default by the Borrower in the performance or observance of any of the provisions of any of this Agreement or the Escrow Account Security or as to the existence of a Default or as to whether any other event or circumstance has occurred as a result of which the security constituted by the Escrow Account Security shall have or may become enforceable unless it has actual knowledge thereof or has been notified in writing thereof by a Lender, in which case it shall promptly notify the Lenders of the relevant event or circumstance; or
be obliged to carry out any know your customer or other checks in relation to any person on behalf of any Lender and each Lender confirms to the Security Trustee that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Security Trustee; or
(c) be liable to any Finance Party for any action taken or omitted under or in connection with this Agreement and the Escrow Account Security unless caused by its gross negligence or wilful misconduct for any delay (or any related consequences) in crediting an account with an amount required under this Agreement to be paid by the Security Trustee if it has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by it for that purpose.
Knowledge of Agents
2.15 For the purposes of this clause 2, the Security Trustee shall not be treated as having actual knowledge of any matter of which another department of the person for the time being acting as it may become aware in the context of corporate finance or advisory activities from time to time undertaken by the Security Trustee for the Borrower or any of its Affiliates or Subsidiaries.
Communications by the Security Trustee
2.16 The Security Trustee shall promptly notify the other Agents and each Lender of the contents of each notice, certificate, information or other document received by it from the Borrower under or pursuant to any provisions of any of the Escrow Account Security or this Agreement.
2.17 Except where the Escrow Account Security or this Agreement specifically provides otherwise, the Security Trustee is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another party.
2.18 If the Security Trustee receives notice from a party referring to this Agreement, describing a Default or an Event of Default and stating that the circumstance described is a Default or an Event of Default it shall promptly notify the other Finance Parties.
No independent action by Finance Parties
2.19 None of the Finance Parties shall have any independent power to enforce the Escrow Account Security, or to exercise any rights, discretions or powers or to grant any consents or releases under or pursuant to the Escrow Account Security or otherwise have direct recourse to the security or other assurances constituted by the Escrow Account Security except through the Security Trustee.
Reliance by Facility Agent
2.20 In considering at any time (and from time to time) the persons entitled to the benefit of any of the Secured Obligations:
(a) the Facility Agent may deem and treat (i) each Lender as the person entitled to the benefit of the Loan of such Lender for all purposes of this Agreement unless and until a Lender Assignment Agreement relating to, such Lenders contribution to the Loan or any part thereof shall have been filed with the Facility Agent and (ii) the office set opposite the name of each Lender in the execution blocks to the Facility Agreement as such Lenders lending office unless and until a written notice of change of lending office shall have been received by the Facility Agent and the Facility Agent may act upon any such notice unless and until the same is superseded by a further such notice; and
(b) the Facility Agent may to the extent that any such information is not inconsistent with notices referred to in clause 2.20(a) above, rely and act in reliance upon information provided to it pursuant to such clause so that it shall not have any liability or responsibility to any party as a consequence of placing reliance on and acting in reliance upon any such information unless it has actual knowledge that such information is inaccurate or incorrect.
Provision of information to Agents
2.21 Without prejudice to clause 2.20, the Lenders shall provide the Security Trustee with such written information as it may reasonably require for the purpose of carrying out its duties and obligations under this Agreement and/or the Escrow Account Security and, in particular, with such directions in writing as may reasonably be required so as to enable the Security Trustee to apply the proceeds of realisation of the Escrow Account Security as contemplated by clause 4.2. However no Lender shall be obliged pursuant to this clause 2.21 to disclose to the Security Trustee any information which it is obliged by law or contract to keep confidential.
Appraisal by Lenders
2.22 Each Finance Party acknowledges that it has not relied on any statement, opinion, forecast or other representation made by the Security Trustee to induce it to enter into this Agreement or the Facility Agreement.
Responsibility of Security Trustee
2.23 The Security Trustee shall not have any duty or responsibility, either initially or on a continuing basis, to any Finance Party:
(a) to investigate or make any enquiry into the title of the Borrower to, or the existence, suitability or sufficiency of, the Charged Assets or any part thereof; or
(b) on account of the failure of the Borrower to perform any of its obligations under any of the Loan Documents; or
(c) for the financial condition of the Borrower; or
(d) for the completeness or accuracy of any statements, representations or warranties in any of the Loan Documents or any document delivered under any of the Loan Documents unless expressly made by the Security Trustee; or
(e) for the execution, effectiveness, adequacy, genuineness, validity, enforceability or admissibility in evidence of any of the Loan Documents or the Charged Assets or of any certificate, report or other document executed or delivered under any of the Loan Documents; or
(f) for the failure to register or notify any of the Loan Documents or for otherwise perfecting or failing to perfect any of the security granted in its favour; or
(g) for taking or omitting to take any other action under or in relation to any of the Loan Documents or any aspect of any of the Loan Documents; or
(h) for the failure to take or require the Borrower to take any steps to render any of the Loan Documents effective as regards Charged Assets outside the jurisdiction in which they are incorporated or have their registered or principal office or to secure the creation of any ancillary charge under the laws of the jurisdiction concerned; or
(i) otherwise in connection with the Facility Agreement or its negotiation or for acting in accordance with the instructions of the Lenders or the relevant group of Lenders or refraining from acting when instructed by the Lenders or the relevant group of Lenders, to refrain from acting when no instruction to act has been given to it by the Lenders or the relevant group of Lenders or where the instructions are unclear. The Security Trustee is entitled to seek directions as to the exercise of any of its powers from the Required Lenders or otherwise (as the case may be) the Lenders and to seek clarification of any instructions previously given; or
(j) any loss to the Trust Property arising in consequence of the failure, depreciation or loss of any Charged Assets or any investments made or retained in good faith or by reason of any other matter or thing, including by virtue of the fact it may be held by a bank, or any damage to or any unauthorised dealing with the Charged Assets nor shall it have any responsibility or liability arising from the fact that the Charged Assets, or documents relating thereto, may be registered in its name or held by it or any other bank or agent selected by the Security Trustee.
2.24 The Security Trustee shall be entitled to rely on any communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper person.
2.25 No party to this Agreement (other than the Security Trustee) may take any proceedings against any officer, employee or agent of the Security Trustee in respect of any claim it might have against the Security Trustee or in respect of any act or omission of any kind by that officer, employee or agent in relation to this Agreement and any officer, employee or agent of the Security Trustee may rely on this clause.
No fiduciary duties
2.26 Nothing in any Loan Document constitutes the Security Trustee as a trustee or fiduciary of any other person other than the Finance Parties.
2.27 The Security Trustee shall not be bound to account to any Finance Party for any sum or the profit element of any sum received by it for its own account.
Rights and discretions
2.28 The Security Trustee may:
(a) assume that:
(i) any instructions received by it from the Facility Agent on behalf of the Lenders or the Required Lenders or on behalf of any other Finance Party are duly given in accordance with the terms of the Facility Agreement; and
(ii) unless it has received notice of revocation, that those instructions have not been revoked;
(b) rely on a certificate from any person:
(i) as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
(ii) to the effect that such person approves of any particular dealing, transaction, step, action or thing,
as sufficient evidence that that is the case and, in the case of paragraph (i) above, may assume the truth and accuracy of that certificate; and
(c) assume (unless it has received notice to the contrary in its capacity as Security Trustee) that:
(i) no Default or Event of Default has occurred; and
(ii) any right, power, authority or discretion vested in any party or any group of Finance Parties has not been exercised.
2.29 The Security Trustee may engage and pay for the advice or services of any lawyers (who may be separate to counsel appointed by the Finance Parties), accountants, tax advisers, surveyors or other professional advisers or experts (whether such advice is obtained by the Security Trustee or by any other party and whether or not the advice contains a limit on liability by reference to monetary cap or otherwise) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying in good faith.
2.30 Notwithstanding any provision of any Loan Document to the contrary, the Security Trustee is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
Other business
2.31 The Security Trustee may, without any liability to account to the Lenders, accept deposits from, lend money to, and generally engage in any kind of banking or trust business with, the Borrower and any of its Affiliates or Subsidiaries or any of the Lenders as if it were not the Security Trustee.
Credit appraisal by the Finance Parties
2.32 Without affecting the responsibility of the Borrower for information supplied by it or on its behalf in connection with any Loan Document, each Finance Party confirms to each other Finance Party that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Loan Document including but not limited to:
(a) the financial condition, status and nature of the Borrower;
(b) the legality, validity, effectiveness, adequacy or enforceability of any Loan Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Loan Document;
(c) whether any Finance Party has recourse, and the nature and extent of that recourse, against any party or any of its respective assets under or in connection with any Loan Document, the transactions contemplated by the Loan Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Loan Document or the Charged Assets;
(d) the adequacy, accuracy and/or completeness of any information provided by the Facility Agent, any party or by any other person under or in connection with any Loan Document, the transactions contemplated by the Loan Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Loan Document; and
(e) the right or title of any person in or to, or the value or sufficiency of, any part of the Charged Assets, the priority of the Escrow Account Security or the existence of any Lien affecting the Charged Assets.
2.33 Without prejudice to the generality of any other provision of this Agreement or any other Loan Document, the entry into possession of the Charged Assets shall not render the Security Trustee or any Receiver liable to account as mortgagee in possession thereunder (or its equivalent in any other applicable jurisdiction) or take any action which would expose it to any liability in respect of which it has not been indemnified and/or secured and/or pre-funded to its satisfaction or to be liable for any loss on realisation or for any default or omission on realisation or for any default or omission for which a mortgagee in possession might be liable unless such loss, default or omission is caused by its own gross negligence or wilful misconduct.
2.34 The Security Trustee shall have no responsibility whatsoever to the Borrower or any Finance Party as regards any deficiency which might arise because the Security Trustee is subject to any Tax in respect of all or any of the Charged Assets, the income therefrom or the proceeds thereof.
2.35 The Security Trustee is not responsible for payment of any taxes or stamp duty (a) as a result of it holding security, (b) as a result of it enforcing any security held by it, or (c) in respect of any remuneration or other amounts payable to it for its own account.
2.36 The Security Trustee is not responsible for making any deductions or withholding in respect of taxes or governmental charges in respect of any amounts paid by the Security Trustee from the proceeds of any enforcement of security.
Reimbursement of Agents expenses
2.37 Without prejudice to clauses 1.7 and 5.1, each Lender shall reimburse the Security Trustee rateably in accordance with such Lenders Commitment (or if such Commitment is then zero, its Commitment immediately prior to such reduction), for the charges and expenses incurred by the Security Trustee in connection with the negotiation, preparation and execution of this Agreement and the Escrow Account Security or in contemplation of, or otherwise in connection with, the enforcement or attempted enforcement of, or the preservation or attempted preservation of any rights under, or in carrying out its duties under, this Agreement and the Escrow Account Security or otherwise in connection with holding the Charged Assets and/or the Trust Property including (in each case) the reasonable fees and expenses of legal or other professional advisers. All such charges and expenses shall be paid together with value added tax or similar tax (if any) thereon.
Security Trustees indemnity
2.38 Without prejudice to clauses 1.7 and 5.1, each Lender shall indemnify the Security Trustee rateably in accordance with such Lenders Commitment against all liabilities, expenses, damages, costs, actions, demands and claims whatsoever suffered or incurred by the Security Trustee or any agent or other person appointed by the Security Trustee in connection with its appointment under this Agreement or in connection with the Loan Documents or the performance of its duties under this Agreement and/or the Escrow Account Security or any action taken or omitted by it under any of the Escrow Account Security or this Agreement, unless such liabilities, damages, costs or claims arise from the Security Trustees own gross negligence or wilful misconduct.
2.39 In no event shall the Security Trustee be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not it has been advised of the possibility of such loss or damages.
Retirement of Security Trustee
2.40 The Security Trustee:
(a) may (without giving any reason and having given to the Borrower and the other Finance Parties not less than 30 Business Days notice of its intention to do so) retire;
(b) shall, upon the request of the Required Lenders (after consultation with the Borrower), retire;
(c) shall, upon the request of the Borrower in the event the Security Trustee is no longer a Lender or an Affiliate of a Lender, retire under this Agreement, the Facility Agreement and the other Loan Documents.
2.41 No such retirement shall take effect unless there has been appointed by the Finance Parties as a successor security trustee:
(a) (except where the Security Trustee has been required to retire by notice from the said Lenders) an Affiliate of the Security Trustee nominated by the Security Trustee or, failing such a nomination; or
(b) a Lender or an Affiliate of a Lender nominated by the Required Lenders or, failing such a nomination; or
(c) any reputable and experienced bank or financial institution nominated by the Security Trustee which appointment must be agreed to by the Lenders as contemplated above,
and such successor security trustee shall have duly accepted such appointment by delivering to the Facility Agent a written confirmation (in a form acceptable to the Facility Agent) of such
acceptance agreeing to be bound by this Agreement in the capacity of Security Trustee as if it had been an original party to this Agreement.
2.42 Upon any such successor as aforesaid being appointed, the retiring Security Trustee shall be discharged from any further obligation (except as otherwise provided in the Loan Documents) under this Agreement and each of the other Loan Documents and its successor and each of the other parties to this Agreement and any of the other Loan Documents shall have the same rights and obligations among themselves as they would have had if such successor had been a party to this Agreement and any of the other Loan Documents in place of the retiring Security Trustee.
2.43 Upon any successor to the Security Trustee being appointed the Trust Property will automatically vest in such successor without the need for any additional act by the Lenders or the Borrower, but without prejudice to clause 2.23(e).
2.44 The retiring Security Trustee, each other Finance Party and the Borrower hereby undertake from time to time to execute, sign, perfect, do and (if required) register every such further assurance, document, act or thing as in the reasonable opinion of each of the successor security trustee and the Finance Parties may be necessary or desirable for the purpose of ensuring that the Trust Property is effectively vested in it so that it holds and enjoys the same rights, interests and powers in relation to the Trust Property as were held by the retiring Security Trustee.
2.45 The Lenders agree to appoint as successor security trustee the person nominated in accordance with clause 2.41 and to execute such documents as may be required to give effect to such appointment.
Consents and approvals
2.46 Each Lender agrees that it will respond reasonably promptly (and in any event within 15 Business Days) to any request for a consent, waiver, amendment of (or in relation to) any term of any Loan Document or any other vote of Lenders under the terms of this Agreement.
2.47 The Borrower shall be consulted as regards any proposed substitute security trustee prior to the appointment thereof and the Borrowers consent to any proposed substitute shall be required.
3 Declaration of trust: supplementary provisions
Declaration of trust
3.1 The Security Trustee hereby accepts its appointment under clause 2.1 as trustee of the Trust Property and irrevocably acknowledges and declares that it holds the same on trust for itself and the Finance Parties and that it shall deal with and apply the same in accordance with the provisions of this Agreement and the Escrow Account Security.
Duration of trusts
3.2 The trusts constituted or evidenced in or by this Agreement shall, save as provided by law, remain in full force and effect until receipt by the Security Trustee of confirmation in writing by the Facility Agent that either (a) there is no longer outstanding any Indebtedness (actual or contingent) which is secured by or under any of the Loan Documents or (b) the Release Date has occurred. At the time that the trusts constituted or evidenced by this Agreement are no longer in full force and effect, it is agreed that, save in respect of clauses 1.7, 1.8, 2 and 5, this Agreement shall have no further force and effect. Promptly following the NYC Cut Off Date the Facility Agent shall notify the Borrower of the Release Date.
Powers and discretions as trustee
3.3 In its capacity as trustee in relation to the Loan Documents and the Trust Property, the Security Trustee shall,without prejudice to any of the powers, discretions and immunities conferred upon
trustees by law (and to the extent not inconsistent with the provisions of this Agreement or any of the Loan Documents), have all the same powers and discretions as a natural person acting as the beneficial owner of such property and/or as are conferred upon the Security Trustee by this Agreement and/or any Loan Document.
3.4 The rights, powers and discretions conferred upon the Security Trustee by this Agreement shall be supplemental to the Trustee Act 1925 and the Trustee Act 2000 and in addition to any which may be vested in the Security Trustee by general law or otherwise. Section 1 of the Trustee Act 2000 shall not apply to the duties of the Security Trustee in relation to the trusts constituted by this Agreement. Where there are any inconsistencies between the Trustee Act 1925 or the Trustee Act 2000 and the provisions of this Agreement, the provisions of this Agreement shall, to the extent allowed by law, prevail and, in the case of any inconsistency with the Trustee Act 2000, the provisions of this Agreement shall constitute a restriction or exclusion for the purposes of that Act.
Determination by the Security Trustee
3.5 In its capacity as trustee in relation to the Loan Documents and in relation to the Trust Property, the Security Trustee shall have full power to determine all questions and doubts arising in relation to the interpretation or application of any of the provisions of this Agreement or any of the Loan Documents as it affects the Security Trustee or the Trust Property and every such determination (whether made upon a question actually raised or implied in the acts or proceedings of the Security Trustee) shall, in the absence of manifest error, be conclusive and shall bind all the other parties to this Agreement.
Employment of agents
3.6 The Security Trustee may, instead of acting personally, employ, pay for and rely on the advice of any agent (whether being a lawyer, chartered accountant or any other suitably qualified person) to transact or concur in transacting any business and to do or concur in doing any acts required to be done by the Security Trustee (including the receipt and payment of money) or may, with the consent of the Borrower, delegate to any person on any terms (including the power to sub-delegate) the costs of which shall be borne by the Borrower and be capable of being recoverable by the Security Trustee pursuant to clause 1.7. Any such agent or delegate engaged in any profession or business shall be entitled to be paid all usual reasonable professional and other charges for business transacted and acts done by him or any partner or employee of his in connection with such trusts. The Security Trustee shall not be bound to supervise or, only as between the Security Trustee on the one hand and the Finance Parties on the other hand, nor be responsible for any loss incurred by reason of any act or omission of, any such agent or delegate if the Security Trustee shall have exercised reasonable care in the selection of such agent or delegate (which, without limitation, shall conclusively be deemed to be the case in respect of any agent approved in writing by the Lenders).
Non-recognition of trust and amendments
3.7 It is agreed between all parties to this Agreement that:
(a) in relation to any jurisdiction the courts of which would not recognise or give effect to the trusts expressed to be constituted by this Agreement the relationship of the Finance Parties to the Security Trustee shall be construed simply as one of principal and agent but, to the fullest extent permissible under the laws of each and every such jurisdiction, this Agreement shall have full force and effect as between the parties; and
(b) save where the consent of all of the Lenders is required to an amendment pursuant to the provisions of clause 2.12 or otherwise, any of the provisions of this clause 3 or of clauses 2 or 4 may be amended by agreement between the Security Trustee and the other Finance Parties without the consent of the Borrower and each such party other than the Security Trustee irrevocably authorises the Facility Agent in its name and on its behalf to execute all documents necessary to effect any such amendment.
Appointment of new or additional trustees
3.8 Without prejudice to clause 2.40, the statutory power to appoint new or additional trustees of the trusts constituted by this Agreement shall be vested in the Security Trustee. The appointment by the Security Trustee of any such new or additional trustees shall terminate on the appointment of a replacement security trustee in accordance with the terms of clause 2.41.
Appointment of separate and co-trustees
3.9 The Security Trustee shall have power, by notice in writing given to each of the Finance Parties, to appoint any person who is a reputable bank or financial institution either to act as separate trustee or as co-trustee, jointly with the Security Trustee and, as the case may be:
(a) if the Security Trustee (acting on the instructions of the Required Lenders) considers such appointment to be in the interests of the Finance Parties; or
(b) for the purpose of conforming with any legal requirement, restriction or condition in any jurisdiction in which any particular act is to be performed; or
(c) for the purpose of obtaining a judgement in any jurisdiction or the enforcement in any jurisdiction against any person of a judgement already obtained,
any person so appointed shall (subject to the provisions of this Agreement) have such rights (including as to reasonable remuneration), powers, duties and obligations as shall be conferred or imposed by the instrument of appointment. The Security Trustee shall have power to remove any person so appointed and shall notify the other Finance Parties of such removal. At the request of the Security Trustee, the other parties to this Agreement shall forthwith execute all such documents and do all such things as may be required to perfect such appointment or removal and each such party irrevocably authorises the Security Trustee in its name and on its behalf to do the same. Each and any such person shall (subject always to the provisions of this Agreement) have such trusts, powers, authorities and discretions (not exceeding those conferred on the Security Trustee by this Agreement and the Loan Documents) and such duties and obligations as shall be conferred or imposed by the instrument of appointment. The Security Trustee shall not be bound to supervise or, only as between the Security Trustee on one hand and the Lenders on the other hand, be responsible for any loss incurred by reason of any act or omission of, any such person if the Security Trustee shall have exercised reasonable care in the selection of such person (which, without limitation, shall conclusively be deemed to be the case in respect of any such person approved in writing by the Required Lenders). The appointment by the Security Trustee of any such new or additional trustees shall terminate on the appointment of a replacement security trustee in accordance with the terms of clause 2.41.
Majority decisions of trustees
3.10 Whenever there shall be more than two trustees having equal authority under this Agreement the majority of such trustees shall be competent to execute and exercise all the duties, powers, trusts, authorities and discretions vested by this Agreement in the Security Trustee generally.
4 Application of proceeds
Co-operation by Finance Parties
4.1 The Finance Parties shall co-operate with each other and any Receiver in realising the Charged Assets and in ensuring that the net proceeds realised under the Escrow Account Security are applied in accordance with clause 4.2.
Application of moneys
4.2 Moneys received by the Security Trustee or by a Receiver after the Enforcement Date pursuant to the exercise of any rights and powers under or pursuant to the Escrow Account Security shall be paid to the Facility Agent and shall, subject to the Facility Agent receiving written directions
pursuant to clause 2.21 and save as otherwise provided by any of the Loan Documents, be applied by the Facility Agent together with any other moneys received by the Facility Agent pursuant to the exercise of any rights and powers under or pursuant to any of the Loan Documents (after providing for all costs, charges, expenses and liabilities and other payments ranking in priority to the Secured Obligations) in the following manner and order:
(a) first, in or towards payment to the Security Trustee of any unpaid Expenses incurred and payments made by the Security Trustee and any Receiver and any other amounts due but unpaid under the Loan Documents (including any remuneration payable to them);
(b) secondly, in or towards payment or satisfaction of all Expenses incurred and payments made and all remuneration payable to the Facility Agent under or pursuant to the Loan Documents;
(c) thirdly, in or towards satisfaction of the Secured Obligations owing to the Finance Parties in such order and/or on such basis as may be agreed from time to time between the Facility Agent and the Lenders; and
(d) fourthly, the balance (if any) shall be paid to the Borrower.
Prompt distribution of proceeds
4.3 The Facility Agent shall make each application and/or distribution falling to be made in accordance with clause 4.2 as soon as is practicable after the relevant moneys are received by, or otherwise become available to, the Facility Agent save that (without prejudice to any other provision contained in any of the Loan Documents) each Agent or any Receiver may credit any moneys received by it to an interest bearing suspense account for so long and in such manner as such Agent or such Receiver may from time to time reasonably determine with a view to preserving the rights of the Finance Parties or any of them to prove for the whole of their respective claims against the Borrower or any other person liable, provided always that any Lender may instruct the Agent or the Receiver to release to it its share of any such amounts (subject always to clause 4.2).
4.4 The Security Trustee shall not be under any duty to consider investing moneys elsewhere and the Security Trustee shall not be responsible for any loss due to interest rate or exchange rate fluctuations and shall not be liable to account for an amount of interest greater than the standard amount that would be payable to an independent customer.
4.5 If any party owes an amount to an Agent under this Agreement this Agent may, after giving notice to that party, deduct an amount not exceeding that amount from any payment to that party which this Agent would otherwise be obliged to make under this Agreement and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of this Agreement that party shall be regarded as having received any amount so deducted.
Waiver by Borrower
4.6 To the extent permitted by law and without prejudice to any duty the Agents and the other Finance Parties may have to mitigate any losses, the Borrower hereby unconditionally waives any rights it may have, whether at law or otherwise, to require demands to be made by any of the Finance Parties under any of the Loan Documents or for the security or any guarantee or other assurance created by the Loan Documents in favour of the Finance Parties (or any of them) to be enforced or realised in any specific order or manner or to require the proceeds thereof to be appropriated in any specific order or manner.
5 Agents and Finance Parties indemnities
Indemnity from Trust Property
5.1 Without prejudice to any right to indemnity by law given to agents or trustees generally and to any provision of the Loan Documents entitling an Agent, any other Finance Party or any other
person to indemnity in respect of, and/or reimbursement of, any liabilities, damages, costs,claims, charges or expenses incurred or suffered by it in connection with any of the Loan Documents or the performance of any duties under this Agreement or any of the Loan Documents, each Agent, each Finance Party and every agent or other person appointed by any of them in connection with this Agreement shall be entitled to be indemnified out of the Trust Property in respect of all liabilities, damages, reasonable costs and claims whatsoever incurred or suffered by it:
(a) in the execution or exercise or bona fide purported execution or exercise of the rights, powers, authorities, discretions and duties created or conferred by or pursuant to this Agreement; and/or
(b) in respect of any matter or thing done or omitted or in any way relating to the Trust Property or the provisions of any of the Loan Documents.
Stamp taxes
5.2 The Borrower shall pay all stamp, documentary, registration or other like duties and taxes (including any duties or taxes payable by any Finance Party) to which this Agreement or any of the Loan Documents or any judgement given in connection therewith is, or at any time may be, subject and shall indemnify each Finance Party against any liabilities, costs, claims and expenses resulting from any failure to pay or any delay in paying such tax arising by reason of any delay or omission by the Borrower to pay such duties or taxes.
Expenses
5.3 Without prejudice to clause 1.7, the Borrower also agrees that the provisions of Section 11.3 (Payment of Costs and Expenses) of the Facility Agreement shall apply with equal effect to this Agreement as if set out in full in this Agreement to cover any expenses of the type referred to in that section of the Security Trustee arising in respect of this Agreement and the Escrow Account Security (including, without limitation, any Expenses) as if reference in that section to the Facility Agent was reference to the Security Trustee.
6 Custody of deeds; illegality
Custody of deeds
6.1 The Security Trustee shall be entitled to place all deeds, certificates and other documents relating to the Charged Assets deposited with it under or pursuant to the Loan Documents or any of them in any safe deposit, safe or receptacle selected by the Security Trustee or with any firm of lawyers and may make any such arrangements as it thinks fit for allowing the Borrower access to, or its lawyers or auditors possession of, such documents when necessary or convenient and the Security Trustee shall not be responsible for any loss incurred in connection with any such deposit, access or possession.
Illegality
6.2 The Security Trustee shall refrain from doing anything which would, or might in its opinion, be contrary to any law of any jurisdiction (including but not limited to England and Wales, the United States of America or any jurisdiction forming part of it) or any regulation or directive of any agency of such state or jurisdiction or which would or might render it liable to any person and may without liability do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
7 Assignments by the Lenders
Benefit and burden
7.1 This Agreement and the other Escrow Account Security shall be binding upon, and enure for the benefit of, the Finance Parties and the Borrower and their respective successors.
Transfers and sub-participations by Lenders
7.2 The provisions of Section 11.11 (Sale and Transfer of the Loan; Participations in the Loan) of the Facility Agreement shall apply, mutatis mutandis, to this Agreement in respect of the Borrower and the Lenders as if set out in full herein.
8 Effect of Agreement
Acknowledgement by Borrower
8.1 The Borrower joins in this Agreement for the purpose of acknowledging the provisions of this Agreement and undertakes with each Finance Party not in any way to prejudice or affect the enforcement of such provisions or do or suffer anything which would be in breach of the terms of this Agreement.
8.2 Nothing contained in this Agreement shall as between the Borrower and the Finance Parties or any of them affect or prejudice any rights or remedies of any such person against the Borrower in respect of any of the Secured Obligations.
9 Miscellaneous
Other securities unaffected
9.1 Nothing contained in this Agreement shall prejudice or affect the rights of the Finance Parties or any of them under any guarantee, lien, bill, note, charge or other security from any party other than the Borrower now or hereafter held by it in respect of any moneys, obligations or liabilities thereby secured and so that (without limitation) each and any such person may apply any moneys recovered under any such guarantee, lien, bill, note, charge or other security in or towards payment of any money, obligation or liability actual or contingent now or hereafter due, owing or incurred to it by the Borrower or may hold such moneys on a suspense account for such period as it may in its absolute discretion think fit.
Obligations of Lenders
9.2 The obligations of each Lender under this Agreement are several; the failure of any Lender to perform such obligations shall not relieve any other Lender or the Borrower of any of their respective obligations or liabilities under this Agreement or any of the Loan Documents nor shall any other Finance Party be responsible for the obligations of any Lender (except for its own obligations, if any, as a Lender) under this Agreement.
No partnership
9.3 This Agreement shall not and shall not be construed so as to constitute a partnership between the parties or any of them.
10 Agreement to provide power of attorney
Each of the Finance Parties (other than the Security Trustee) shall, if so requested in writing by the Security Trustee, appoint the Security Trustee, subject to any limitations on the powers of the Security Trustee imposed by this Agreement, to be its attorney generally for and in the name and on behalf of such Finance Party and as the act and deed or otherwise of such Finance Party to execute, seal and deliver and otherwise perfect and do all such deeds,
assurances, agreements, instruments, acts and things which may be required for the full exercise of all or any of the rights, powers or remedies conferred in favour of the Security Trustee by the Escrow Account Security or which may be deemed proper in or in connection with all or any of the purposes aforesaid. The power to be conferred by each Finance Party pursuant to this clause 10 shall be a general power of attorney under the Powers of Attorney Act 1971, and each Finance Party agrees that such power will be in terms that the relevant Finance Party will ratify and confirm, and agree to ratify and confirm, any deed, assurance, agreement, instrument, act or thing which the relevant Agent may execute or do pursuant thereto.
11 Notices and other matters
11.1 Section 11.2 (Notices) of the Facility Agreement shall apply with equal effect to this Agreement as if set out herein provided further that in the case of the Security Trustee, its address, facsimile number and email and contact person are:
Citigroup Centre
Canada Square
London E14 5LB
Fax: |
+44 207 500 5877 |
Email: |
issuerpfla@citi.com |
Attn: |
Agency and Trust |
11.2 Each of the parties to this Agreement represents and warranties to each of the other parties that it has duly authorised the execution hereof and that this Agreement constitutes its valid and legally binding obligations.
12 Contracts (Rights of Third Parties) Act 1999
12.1 With the exception of BpiFAE and the persons referred to in clause 2.25, 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.
12.2 Notwithstanding any term of any Loan Document, 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 Governing law and jurisdiction
Law
13.1 This Agreement and any non-contractual obligations connected with it are governed by and shall be construed in accordance with English law.
Submission to jurisdiction
13.2 For their mutual benefit, each of the Finance Parties and the Borrower agree that any legal action or proceedings arising out of or in connection with this Agreement may be brought in the English courts, irrevocably and unconditionally submit to the exclusive jurisdiction of such courts and the Borrower irrevocably designates, appoints and empowers RCL Cruises Ltd. at present of Building 3, The Heights Brooklands, Weybridge, Surrey KT13 0NY to receive for it and on its behalf, service of process issued out of the English courts in any legal action or proceedings.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to be duly executed and, in the case of the Security Trustee, duly executed as a deed and delivered on the date first above written.
The Lenders
Lender |
Facility Office and contact details |
Commitment
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Banco Bilbao Vizcaya Argentaria, Paris Branch |
29 avenue de lOpéra 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 Email: david.peyroux@bbva.com / laura.luca@bbva.com / asuncion.merodio@bbva.com
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0.75 |
Banco Santander, S.A. Paris Branch |
Facility Office:
374, rue Saint-Honoré 75001 Paris France
Operational address:
Ciudad Financiera
Fax No: +34 91 257 1682
Attention: Elise Regnault Beatriz de la Mata Ecaterina Mucuta Vanessa Berrio Vélez Ana Sanz Gómez
Tel No: +34 912893722 +1 212-297-2942 +33 1 53 53 70 46 +34 91 289 10 28 +34 91 289 17 90
E-mail: elise.regnault@gruposantander.com bdelamata@santander.us ecaterina.mucuta@gruposantander.com vaberrio@gruposantander.com anasanz@gruposantander.com MiddleOfficeParis@gruposantander.com
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15 |
Lender |
Facility Office and contact details |
Commitment
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Citibank N.A., London Branch |
Citigroup Centre
Attention: Guido Cicolani / Cristiana Ilievici / Konstantinos Frangos / Romina Coates / Kara Catt
Fax No: +44 20 7986 4881 Tel No: +44 20 7986 3035 / +44 20 7508 0344 /
E-mail: cristiana.ilievici@citi.com konstantinos.frangos@citi.com kara.catt@citi.com
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21 |
HSBC France |
HSBC France Global Banking Agency Operations (GBAO) Transaction Manager Unit
103 avenue des Champs Elysées 75008 Paris France
Attention: Guillaume Gladu / Alexandra Penda
Fax No: + 33 1 40 70 28 80 Tel No: + 33 1 40 70 73 81 / + 33 1 41 02 67 50
Email: alexandra.penda@hsbc.fr
Copy to:
HSBC France 103 avenue des Champs Elysées 75008 Paris France
Attention: Julie Bellais Celine Karsenty
Fax No: + 33 1 40 70 78 93 Tel No: + 33 1 40 70 28 59 / |
5.25 |
Lender |
Facility Office and contact details |
Commitment
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+ 33 1 40 70 22 97
Email:
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Société Générale |
Facility Office: 29 Boulevard Haussmann
Address for Operational / Servicing matters:
Attention: Mouna KHACHABI
Société Générale 189, rue dAubervilliers 75886 PARIS CEDEX 18 France
Tel No: +33 1 58 98 30 78
Email : mouna.khachabi@sgcib.com; par-oper-caf-dmt6@sgcib.com;
For Credit matters:
OPER/FIN/SMO/EXT
Attention: Olivier Gueguen and Muriel Baumann
Tel No: +33 (0)1 42 13 07 52 / +33 (0)1 58 98 22 761
Fax No: +33 1 46 92 45 97
Email: muriel.baumann@sgcib.com olivier.gueguen@sgcib.com |
11.52 |
Sumitomo Mitsui Banking Corporation Europe Limited, Paris Branch |
1/3/5 rue Paul Cézanne
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 :
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4.25 |
Lender |
Facility Office and contact details |
Commitment
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cedric_leduigou@fr.smbcgroup.com guillaume_branco@fr.smbcgroup.com cam_truong@fr.smbcgroup.com claire_lucien@fr.smbcgroup.com
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SFIL |
1-3, rue de Passeur de Boulogne CS 80054 92861 Issy-les-Moulineaux Cedex 9 France
Contact Person Loan Administration Department:
Direction du Crédit Export: Pierre-Marie Debreuille / Anne Crépin Direction des Opérations: Dominique Brossard / Patrick Sick
Telephone: Pierre-Marie Debreuille +33 1 73 28 87 64 Anne Crépin +33 1 73 28 88 59 Dominique Brossard +33 1 73 28 91 93 Patrick Sick +33 1 73 28 87 66
Email: pierre-marie.debreuille@sfil.fr anne.crepin@sfil.fr dominique.brossard@sfil.fr patrick.sick@sfil.fr refinancements-export@sfil.fr creditexport_ops@sfil.fr
Fax: + 33 1 73 28 85 04
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42.23 |
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100
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Execution Page Agency and Trust Deed
Facility Agent
SIGNED by |
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CITIBANK EUROPE PLC, UK BRANCH |
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as Facility Agent |
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EXECUTED as a DEED by |
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CITICORP TRUSTEE COMPANY LIMITED |
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as Security Trustee |
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Global Coordinator |
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CITIBANK N.A., LONDON BRANCH |
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as Global Coordinator |
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ECA Agent |
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SUMITOMO MITSUI BANKING |
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CORPORATION EUROPE LIMITED, |
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Mandated Lead Arrangers |
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BANCO BILBAO VIZCAYA ARGENTARIA, |
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PARIS BRANCH |
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SIGNED by |
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BANCO SANTANDER, S.A. |
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as Mandated Lead Arranger |
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CITIBANK N.A., LONDON BRANCH |
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as Mandated Lead Arranger |
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HSBC FRANCE |
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as Mandated Lead Arranger |
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SOCIÉTÉ GÉNÉRALE |
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as Mandated Lead Arranger |
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SIGNED by |
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SUMITOMO MITSUI BANKING |
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CORPORATION EUROPE LIMITED, |
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PARIS BRANCH |
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as Mandated Lead Arranger |
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BANCO BILBAO VIZCAYA ARGENTARIA, |
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PARIS BRANCH |
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BANCO SANTANDER, S.A. |
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PARIS BRANCH |
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CITIBANK N.A., LONDON BRANCH |
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SIGNED by |
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SUMITOMO MITSUI BANKING |
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CORPORATION EUROPE LIMITED, |
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PARIS BRANCH |
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ROYAL CARIBBEAN CRUISES LTD. |
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Attorney-in-fact |
Schedule 8
Form of Effective Date certificate
To: The other parties to the First Supplemental Agreement referred to below
Dear Sirs,
Hull No. K34 at Chantiers de lAtlantique S.A. (previously known as STX France S.A.) First Supplemental Agreement dated [·] 2018 (the First Supplemental Agreement)
We refer to clause 5.4 of the First Supplemental Agreement and confirm that all conditions precedent in clause 5.1 of the First Supplemental Agreement (and, in relation to the Finance Parties, clause 5.2 of the First Supplemental Agreement) have been fulfilled or waived on [·] 2018.
Accordingly, the Effective Date for the purposes of the First Supplemental Agreement is [·] 2018.
Facility Agent
Signed by ..
For and on behalf of Citibank Europe plc, UK Branch
Buyer
Signed by ..
For and on behalf of Royal Caribbean Cruises Ltd.
EXECUTION PAGE FIRST SUPPLEMENTAL AGREEMENT
Borrower |
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SIGNED by Elaine Anderson, Director |
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for and on behalf of |
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AZAIREMIA FINANCE LIMITED |
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/s/ ELAINE ANDERSON |
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Attorney in-fact |
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Buyer |
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SIGNED by Antje Gibson, VP, Treasurer |
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for and on behalf of |
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ROYAL CARIBBEAN CRUISES LTD. |
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/s/ ANTJE M. GIBSON |
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Attorney in-fact |
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Facility Agent |
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SIGNED by Nisha Thom |
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for and on behalf of |
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CITIBANK EUROPE PLC, UK BRANCH |
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/s/ NISHA THOM |
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Attorney in-fact |
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Security Trustee |
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SIGNED by Nisha Thom |
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for and on behalf of |
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CITICORP TRUSTEE COMPANY LIMITED |
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/s/ NISHA THOM |
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Attorney in-fact |
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Global Coordinator |
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SIGNED by Kara Catt, Vice President |
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for and on behalf of |
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CITIBANK N.A., LONDON BRANCH |
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/s/ KARA CATT |
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Attorney in-fact |
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French Coordinating Bank |
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SIGNED by Nisha Thom |
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for and on behalf of |
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HSBC FRANCE |
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/s/ NISHA THOM |
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Attorney in-fact |
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ECA Agent |
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SIGNED by Nisha Thom |
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for and on behalf of |
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SUMITOMO MITSUI BANKING CORPORATION |
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EUROPE LIMITED, PARIS BRANCH |
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/s/ NISHA THOM |
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Attorney in-fact |
The Lenders |
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SIGNED by Nisha Thom |
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for and on behalf of |
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BANCO BILBAO VIZCAYA ARGENTARIA, |
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/s/ NISHA THOM |
PARIS BRANCH |
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Attorney in-fact |
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SIGNED by Caroline Pantaleao, Head of Middle Office/ |
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Pierre Roserot de Melin, Chief Administrative Officer |
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/s/ CAROLINE PANTALEAO |
for and on behalf of |
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Attorney in-fact |
BANCO SANTANDER, S.A., PARIS BRANCH |
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/s/ PIERRE ROSEROT DE MELIN |
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Attorney in-fact |
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SIGNED by Kara Catt, Vice President |
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for and on behalf of |
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CITIBANK N.A., LONDON BRANCH |
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/s/ KARA CATT |
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Attorney in-fact |
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SIGNED by Nisha Thom |
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for and on behalf of |
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HSBC FRANCE |
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/s/ NISHA THOM |
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Attorney in-fact |
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SIGNED by Nisha Thom |
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for and on behalf of |
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SOCIÉTÉ GÉNÉRALE |
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/s/ NISHA THOM |
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Attorney in-fact |
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SIGNED by Nisha Thom |
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for and on behalf of |
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SUMITOMO MITSUI BANKING CORPORATION |
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/s/ NISHA THOM |
EUROPE LIMITED, PARIS BRANCH |
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Attorney in-fact |
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SIGNED by Nisha Thom |
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for and on behalf of |
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SFIL |
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/s/ NISHA THOM |
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Attorney in-fact |
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The Mandated Lead Arrangers |
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SIGNED by Nisha Thom |
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for and on behalf of |
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BANCO BILBAO VIZCAYA ARGENTARIA, |
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/s/ NISHA THOM |
PARIS BRANCH |
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Attorney in-fact |
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SIGNED by Caroline Pantaleao, Head of Middle Office/ |
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Pierre Roserot de Melin, Chief Administrative Officer |
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/s/ CAROLINE PANTALEAO |
for and on behalf of |
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Attorney in-fact |
BANCO SANTANDER, S.A., PARIS BRANCH |
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/s/ PIERRE ROSEROT DE MELIN |
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Attorney in-fact |
SIGNED by Kara Catt, Vice President |
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for and on behalf of |
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CITIBANK N.A., LONDON BRANCH |
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/s/ KARA CATT |
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Attorney in-fact |
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SIGNED by Nisha Thom |
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for and on behalf of |
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HSBC FRANCE |
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/s/ NISHA THOM |
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Attorney in-fact |
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SIGNED by Nisha Thom |
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for and on behalf of |
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SOCIÉTÉ GÉNÉRALE |
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/s/ NISHA THOM |
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Attorney in-fact |
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SIGNED by Nisha Thom |
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for and on behalf of |
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SUMITOMO MITSUI BANKING CORPORATION |
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/s/ NISHA THOM |
EUROPE LIMITED, PARIS BRANCH |
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Attorney in-fact |
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NAME | INCORPORATION |
Admiral Management Inc. | Liberia |
Adventure of the Seas Inc. | Liberia |
Allure of the Seas Inc. | Liberia |
Anthem of the Seas Inc. | Liberia |
Azamara Journey Inc. | Liberia |
Azamara Pursuit Inc. | Liberia |
Azamara Quest Inc. | Liberia |
Brilliance of the Seas Shipping Inc. | Liberia |
Canodros CL | Ecuador |
Celebrity Cruise Lines Inc. | Cayman Islands |
Celebrity Cruises Holdings Inc. | Liberia |
Celebrity Cruises Inc., doing business as Celebrity Cruises | Liberia |
Celebrity Eclipse Inc. | Liberia |
Celebrity Equinox Inc. | Liberia |
Celebrity Reflection Inc. | Liberia |
Celebrity Silhouette Inc. | Liberia |
Celebrity Solstice Inc. | Liberia |
Constellation Inc. | Liberia |
Enchantment of the Seas Inc. | Liberia |
Explorer of the Seas Inc. | Liberia |
Freedom of the Seas Inc. | Liberia |
GG Operations Inc. | Delaware |
Grandeur of the Seas Inc. | Liberia |
Greensboro S.L. | Spain |
Harmony of the Seas Inc. | Liberia |
Independence of the Seas Inc. | Liberia |
Infinity Inc. | Liberia |
Island for Science, Inc. | Indiana |
Islas Galapagos Turismo y Vapores CA | Ecuador |
Jewel of the Seas Inc. | Liberia |
Labadee Investments Ltd. | Cayman Islands |
Liberty of the Seas Inc. | Liberia |
Majesty of the Seas Inc. | Liberia |
Mariner of the Seas Inc. | Liberia |
Millennium Inc. | Liberia |
Navigator of the Seas Inc. | Liberia |
Nordic Empress Shipping Inc. | Liberia |
Oasis of the Seas Inc. | Liberia |
Oceanadventures S.A. | Ecuador |
Ovation of the Seas Inc. | Liberia |
NAME | INCORPORATION |
Quantum of the Seas Inc. | Liberia |
Radiance of the Seas Inc. | Liberia |
RCL Cruises Ltd. | England and Wales |
RCL GEO LLC | Florida |
RCL Holdings Cooperatief U.A. | Netherlands |
RCL Horizon LLC | Liberia |
RCL Investments Ltd. | England and Wales |
RCL Monarch LLC | Liberia |
RCL Sovereign LLC | Liberia |
RCL (UK) Ltd. | England and Wales |
RCL Worldwide (Hong Kong) Limited | Hong Kong |
RCL Worldwide Ltd. | Liberia |
RCL Zenith LLC | Liberia |
Rhapsody of the Seas Inc. | Liberia |
Royal Caribbean Cruise Lines AS | Norway |
Royal Caribbean Cruises (Asia) Pte. Ltd. | Singapore |
Royal Caribbean Cruises Services (China) Company Limited | China |
Serenade of the Seas Inc. | Liberia |
Silver Cloud Shipping Co. Ltd. | Bahamas |
Silversea Cruise Finance Ltd. | Bahamas |
Silversea Cruise Holding Ltd. | Bahamas |
Silversea Cruises Ltd. | Bahamas |
Silver Muse Shipping Co. Ltd. | Bahamas |
Silver Shadow Shipping Co. Ltd. | Bahamas |
Silver Spirit Shipping Co. Ltd. | Bahamas |
Silver Whisper Shipping Co. Ltd. | Bahamas |
Silver Wind Shipping Ltd. | Bahamas |
Societe Labadee Nord, S.A. | Haiti |
Summit Inc. | Liberia |
Torcatt Enterprises S.A. | Costa Rica |
TourTrek SEZC Ltd. | Cayman Islands |
Vision of the Seas Inc. | Liberia |
Voyager of the Seas Inc. | Liberia |
White Sand Inc. | Liberia |
XP Tours S.A. | Ecuador |
* | * | * | * | * |
/s/ John F. Brock | /s/ Stephen R. Howe Jr. | |
John F. Brock | Stephen R. Howe Jr. | |
Director | Director | |
/s/ William L. Kimsey | /s/ Maritza G. Montiel | |
William L. Kimsey | Maritza G. Montiel | |
Director | Director | |
/s/ Ann S. Moore | /s/ Eyal M. Ofer | |
Ann S. Moore | Eyal M. Ofer | |
Director | Director | |
/s/ Thomas J. Pritzker | /s/ William K. Reilly | |
Thomas J. Pritzker | William K. Reilly | |
Director | Director | |
/s/ Bernt Reitan | /s/ Vagn O. Sørensen | |
Bernt Reitan | Vagn O. Sørensen | |
Director | Director | |
/s/ Donald Thompson | /s/ Arne Alexander Wilhelmsen | |
Donald Thompson | Arne Alexander Wilhelmsen | |
Director | Director |
1. | I have reviewed this annual report on Form 10-K of Royal Caribbean Cruises Ltd.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. | The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Date: | February 22, 2019 | |
/s/ Richard D. Fain | ||
Richard D. Fain | ||
Chairman and | ||
Chief Executive Officer | ||
(Principal Executive Officer) |
1. | I have reviewed this annual report on Form 10-K of Royal Caribbean Cruises Ltd.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. | The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Date: | February 22, 2019 | |
/s/ Jason T. Liberty | ||
Jason T. Liberty | ||
Executive Vice President, Chief Financial Officer | ||
(Principal Financial Officer) |
Date: | February 22, 2019 | ||
By: | /s/ Richard D. Fain | ||
Richard D. Fain | |||
Chairman and | |||
Chief Executive Officer | |||
(Principal Executive Officer) | |||
By: | /s/ Jason T. Liberty | ||
Jason T. Liberty | |||
Executive Vice President, Chief Financial Officer | |||
(Principal Financial Officer) |
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