EXHIBIT 4(f)
CONFORMED COPY
DATED 7 JULY 2004
NCL CORPORATION LTD.
(AS BORROWER)
DNB NOR BANK ASA
NORDEA BANK NORGE ASA
(AS LEAD ARRANGERS)
COMMERZBANK AKTIENGESELLSCHAFT
HSH NORDBANK AG
KFW
NORDDEUTSCHE LANDESBANK -GIROZENTRALE-
VEREINS- UND WESTBANK AKTIENGESELLSCHAFT
(AS CO-ARRANGERS)
THE SEVERAL BANKS
PARTICULARS OF WHICH ARE SET OUT IN SCHEDULE 1
(AS ORIGINAL LENDERS)
NORDEA BANK NORGE ASA
(AS BOOK MANAGER)
DNB NOR BANK ASA
(AS AGENT)
-------------------------------------
USD800,000,000
SECURED LOAN FACILITY AGREEMENT
-------------------------------------
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇'▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
TEL: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
FAX: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
REF: JMC/1253/43-00372
CONTENTS
PAGE
1 Definitions and Construction..................................................... 1
1.1 Definitions............................................................... 1
1.2 Construction.............................................................. 21
1.3 Agent..................................................................... 22
2 The Facility..................................................................... 22
2.1 Availability.............................................................. 22
2.2 Purpose and Application................................................... 23
2.3 Drawdown.................................................................. 23
2.4 Break costs............................................................... 24
2.5 Conditions of drawdown.................................................... 24
2.6 Several obligations of the Lenders........................................ 24
2.7 Lender's failure to perform............................................... 25
2.8 Fulfilment of conditions after drawdown................................... 25
3 Repayment of the Term Loan Facility.............................................. 25
4 Prepayment of the Term Loan Facility............................................. 26
4.1 Voluntary prepayment...................................................... 26
4.2 Voluntary prepayment in case of increased cost............................ 26
4.3 Mandatory prepayment in case of illegality................................ 26
4.4 Voluntary prepayment following imposition of Substitute Basis............. 27
4.5 Prepayment in case of Total Loss of a Vessel.............................. 27
4.6 Prepayment in case of sale of a Vessel.................................... 28
4.7 Effect of prepayment...................................................... 28
4.8 Break costs on prepayment................................................. 29
5 Repayment, Reduction and Cancellation of the Revolving Credit Facility........... 29
5.1 Repayment................................................................. 29
5.2 Scheduled reductions of Commitments to the Revolving Credit Facility...... 30
5.3 Sale or Total Loss of a Vessel: mandatory cancellation.................... 30
5.4 Amounts payable on prepayment............................................. 30
5.5 Notice of prepayment...................................................... 30
5.6 Voluntary cancellation of Commitments to the Revolving Credit Facility.... 31
5.7 Additional partial cancellation........................................... 31
5.8 Prepayment during Term.................................................... 32
5.9 Mandatory cancellation in case of illegality.............................. 32
5.10 Voluntary cancellation following imposition of Substitute Basis........... 33
5.11 Cancellation in case of Total Loss of a Vessel............................ 33
5.12 Cancellation in case of sale of a Vessel.................................. 33
6 Interest......................................................................... 34
6.1 Payment of interest....................................................... 34
6.2 Selection and duration of Interest Periods................................ 34
6.3 No notice and unavailability.............................................. 34
6.4 Extension and shortening of Interest Periods.............................. 34
6.5 Interest Rate............................................................. 35
6.6 Bank basis................................................................ 35
6.7 Default interest.......................................................... 35
7 Substitute Basis of Funding...................................................... 36
7.1 Market disturbance........................................................ 36
7.2 Suspension of drawdown.................................................... 37
7.3 Certificates of Substitute Basis.......................................... 37
7.4 Review.................................................................... 37
8 Payments......................................................................... 38
8.1 Place for payment......................................................... 38
8.2 Deductions and grossing-up................................................ 38
8.3 Production of receipts for Taxes.......................................... 39
8.4 Money of account.......................................................... 40
8.5 Accounts.................................................................. 40
8.6 Earnings.................................................................. 40
8.7 Continuing security....................................................... 41
8.8 Mitigation................................................................ 41
9 Yield Protection and Force Majeure............................................... 41
9.1 Increased costs........................................................... 41
9.2 Force majeure............................................................. 43
10 Representations and Warranties................................................... 44
10.1 Duration.................................................................. 44
10.2 Representations and warranties............................................ 44
11 Undertakings..................................................................... 51
11.1 Duration.................................................................. 51
11.2 Information............................................................... 51
11.3 Financial Undertakings.................................................... 53
11.4 Dividends................................................................. 54
11.5 Notification of default................................................... 55
11.6 Consents and registrations................................................ 55
11.7 Negative pledge........................................................... 56
11.8 Disposals................................................................. 56
11.9 Purchases................................................................. 57
11.10 Change of name or business................................................ 57
11.11 Mergers................................................................... 57
11.12 Maintenance of status and franchises...................................... 58
11.13 Financial records......................................................... 58
11.14 Subordination of indebtedness............................................. 58
11.15 Guarantees................................................................ 59
11.16 Further assurance......................................................... 59
11.17 Valuation of the Vessels.................................................. 59
11.18 Marginal security......................................................... 60
11.19 No dealings with Master Agreements........................................ 61
11.20 Financial year end........................................................ 61
11.21 Maintenance and Insurance................................................. 61
12 Rights of the Agent and the Lenders.............................................. 61
12.1 No derogation of rights................................................... 61
12.2 Enforcement of remedies................................................... 62
13 Default.......................................................................... 62
13.1 Events of default......................................................... 62
13.2 Acceleration.............................................................. 70
13.3 Default indemnity......................................................... 70
13.4 Set-off................................................................... 71
13.5 Master Agreement rights................................................... 72
14 Application of Funds............................................................. 72
14.1 Total Loss proceeds/proceeds of sale/Event of Default monies.............. 72
14.2 General funds............................................................. 74
14.3 Application of proceeds of Insurances..................................... 75
14.4 Suspense account.......................................................... 75
15 The Master Agreement............................................................. 76
15.1 Applicability............................................................. 76
15.2 Additional Termination Event.............................................. 76
15.3 Adjustment of Notional Amounts............................................ 76
15.4 Authority................................................................. 77
15.5 Termination of Transactions............................................... 77
15.6 Indemnity................................................................. 77
15.7 Notification of Transactions.............................................. 77
16 Fees............................................................................. 77
16.1 Commitment fee............................................................ 77
16.2 Other fees................................................................ 78
17 Expenses......................................................................... 78
17.1 Initial expenses.......................................................... 78
17.2 Enforcement expenses...................................................... 78
17.3 Stamp duties.............................................................. 78
18 Waivers, Remedies Cumulative..................................................... 79
18.1 No waiver................................................................. 79
18.2 Remedies cumulative....................................................... 79
18.3 Severability.............................................................. 79
18.4 Time of essence........................................................... 79
19 Counterparts..................................................................... 79
20 Changes to the Lenders........................................................... 80
20.1 Assignments and transfers by the Lenders.................................. 80
20.2 Conditions of assignment or transfer...................................... 80
20.3 Assignment or transfer fee................................................ 81
20.4 Limitation of responsibility of Existing Lenders.......................... 82
20.5 Procedure for transfer.................................................... 83
20.6 Copy of Transfer Certificate to Borrower.................................. 84
20.7 Disclosure of information................................................. 84
20.8 Borrower's co-operation................................................... 85
21 Changes to the Borrower.......................................................... 85
22 Reference Banks and Agent........................................................ 85
22.1 Reference Banks........................................................... 85
22.2 Decision making........................................................... 85
22.3 The Agent................................................................. 87
22.4 Retirement and replacement of the Agent................................... 92
23 Notices.......................................................................... 94
23.1 Mode of communication..................................................... 94
23.2 Address................................................................... 94
23.3 Telefax communication..................................................... 95
23.4 Electronic mail........................................................... 95
23.5 Receipt................................................................... 96
23.6 Language.................................................................. 97
24 Governing Law.................................................................... 97
25 Waiver of Immunity............................................................... 97
26 Jurisdiction..................................................................... 97
Schedule 1 Particulars of Agent, Lead Arrangers, Co-Arrangers and Original Lenders.. 101
Schedule 2 Notice of Drawdown....................................................... 106
Schedule 3 Conditions Precedent..................................................... 108
Schedule 4 Confidentiality Undertaking.............................................. 115
Schedule 5 Transfer Certificate..................................................... 117
Schedule 6 Quarterly Statement of Financial Covenants............................... 123
EXHIBIT 4(f)
FACILITY AGREEMENT
DATED 7 JULY 2004
BETWEEN:
(1) NCL CORPORATION LTD. of ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇, ▇▇▇▇▇▇▇ as borrower (the "BORROWER");
(2) DNB NOR BANK ASA of ▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ and NORDEA BANK
NORGE ASA of Middelthuns gate ▇▇, ▇▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ as lead arrangers
(collectively the "LEAD ARRANGERS" and each individually a "LEAD
ARRANGER");
(3) THE SEVERAL BANKS particulars of which are set out in Schedule 1 as
co-arrangers (collectively the "CO-ARRANGERS" and each individually a
"CO-ARRANGER");
(4) THE SEVERAL BANKS particulars of which are set out in Schedule 1 as
lenders (collectively the "ORIGINAL LENDERS" and each individually an
"ORIGINAL LENDER"); and
(5) DNB NOR BANK ASA of ▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ as agent (the
"AGENT").
WHEREAS:
The Lead Arrangers have arranged for a syndicate of international banks and/or
financial institutions to provide a loan facility of up to eight hundred million
Dollars (USD800,000,000) to the Borrower on the terms and subject to the
conditions set out in this Agreement to finance in part the Purchase Price due
to the Seller under the MOA in respect of the Norwegian Spirit Vessel, to
refinance the existing finance in respect of the Norwegian Star Vessel and the
Pride of Aloha Vessel, and to pay fees and expenses incurred in connection with
the loan facility, and any balance of the loan facility from time to time may be
used for general corporate and working capital purposes for the Borrower and its
Subsidiaries.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS AND CONSTRUCTION
1.1 DEFINITIONS
In this Agreement:
"ACCOUNTS" means the audited consolidated profit and loss account
and balance sheet (including all additional information and notes
thereto) of the Borrower and its consolidated Subsidiaries together
with the relative directors' and auditors' reports;
"ADVANCE DATE", in relation to any Drawing, means the date on which
that Drawing is advanced to the Borrower pursuant to Clause 2.3 and
applied in accordance with Clause 2.2;
"AFFILIATE" means, with respect to any person, any other person
controlling, controlled by or under common control with, such person
and for purposes of this definition, "CONTROL" (including, with
correlative meanings, the terms "CONTROLLING", "CONTROLLED BY" and
"UNDER COMMON CONTROL WITH"), as applied to any person, means the
possession, directly or indirectly, of the power to vote ten per
cent (10%) or more of the securities having voting power for the
election of directors of such person, or otherwise to direct or
cause the direction of the management and policies of that person,
whether through the ownership of voting securities or by contract or
otherwise;
"AGREEMENT" means this agreement;
"APPLICABLE MARGIN" means the rate per annum of one point five per
cent (1.5%) except during any period in which seventy five per cent
(75%) or more of the Maximum Revolving Credit Facility Amount has
been drawn down and is outstanding under this Agreement when the
rate per annum shall be increased to one point seven per cent
(1.7%);
"APPROVED STOCK EXCHANGE" means the New York Stock Exchange, NASDAQ
or such other stock exchange in the United States of America as is
approved in writing by the Agent (acting on the instructions of the
Majority Lenders);
"ARRASAS" means Arrasas Limited of ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ Road, ▇▇▇▇▇▇▇, Isle of Man IM2 4RB, British Isles;
"ASSOCIATED COMPANY" in relation to any company, means any company
which is a Subsidiary or Holding Company of that company or the
majority of whose shares are beneficially owned by the same person
or persons as own the majority of the shares of that company;
2
"AVAILABILITY PERIOD" means the Revolving Credit Facility
Availability Period or the Term Loan Facility Availability Period;
"AVAILABLE COMMITMENT" means, in relation to a Lender, the amount of
its Commitment in respect of the Revolving Credit Facility less the
amount of its Contribution to the Revolving Credit Facility;
"BUSINESS DAY" means any day on which banks and financial markets in
London, Oslo, Frankfurt am Main and New York are open for the
transaction of business of the nature contemplated by this
Agreement;
"CASH BALANCE" means the unencumbered and otherwise unrestricted
cash and cash equivalents as set forth on the consolidated balance
sheet of the NCLC Group prepared in accordance with US GAAP at the
end of every month;
"CERTIFIED COPY" means, in relation to any document delivered or
issued by or on behalf of any company, a copy of such document
certified as a true, complete and up-to-date copy of the original by
any of the directors or the secretary or assistant secretary for the
time being of that company;
"CHARGE" means the three (3) valid and effective first priority
shares charges one (1) to be executed in respect of each of the
Owners by the relevant Shareholder as holder (legally and
beneficially) of all the authorised and issued shares in the
relevant Owner in favour of the Agent such charges to be in the form
and on the terms and conditions agreed between the Lenders and the
Borrower and as specified in paragraph 28 of Schedule 3;
"COMMITMENT" means, as to each Original Lender, the sum set out
opposite its name in Schedule 1 as the amount of the Facility which,
subject to the terms of this Agreement, it is obliged to advance to
the Borrower under Clause 2 (or, where the context so admits, such
amount which any successor in title, assignee or transferee
(including any Transferee) of any Original Lender or Lender shall be
obliged to advance to the Borrower under Clause 2, following the
assumption of all or any portion of such liability from any Original
Lender or Lender hereunder) in each case as such amount may be
reduced or cancelled under this Agreement;
"COMMITMENT PERIOD" means the Term Loan Facility Commitment Period
or the Revolving Credit Facility Commitment Period;
3
"COMPULSORY ACQUISITION" means requisition for title or other
compulsory acquisition of a Vessel including its capture, seizure,
detention or confiscation or expropriation but excluding any
requisition for hire by or on behalf of any government or
governmental authority or agency or by any persons acting or
purporting to act on behalf of any such government or governmental
authority or agency;
"CONFIDENTIALITY UNDERTAKING" means the undertaking to be entered
into relating to the release of financial information pertaining to
the NCLC Group by the Agent or any Lender to a potential Transferee
or assignee such undertaking to be in the form of Schedule 4;
"CONFIRMATION" means a Confirmation exchanged or deemed to be
exchanged between a Lender or its Affiliate (as the case may be) and
the Borrower as contemplated by the relevant Master Agreement;
"CONSOLIDATED DEBT SERVICE" means, for any relevant period, the sum
(without double counting), determined in accordance with US GAAP,
of:
(i) the aggregate principal payable or paid during such period on
any Indebtedness for Borrowed Money of any member of the NCLC
Group, other than:
(a) principal of any such Indebtedness for Borrowed Money
prepaid at the option of the relevant member of the NCLC
Group;
(b) principal of any such Indebtedness for Borrowed Money
prepaid upon the sale or Total Loss of any vessel owned
or leased under a capital lease by any member of the
NCLC Group; and
(c) balloon payments of any such Indebtedness for Borrowed
Money payable during such period (and for the purpose of
this paragraph (c) a "BALLOON PAYMENT" shall not include
any scheduled repayment instalment of such Indebtedness
for Borrowed Money which forms part of the balloon);
(ii) Consolidated Interest Expense for such period;
4
(iii) the aggregate amount of any dividend or distribution of
present or future assets, undertakings, rights or revenues to
any shareholder of any member of the NCLC Group (other than
the Borrower or one of its wholly owned Subsidiaries) or any
distribution in respect of share capital during such period
("DISTRIBUTIONS"); and
(iv) all rent under any capital lease obligations by which the
Borrower or any consolidated Subsidiary is bound which are
payable or paid during such period and the portion of any debt
discount that must be amortised in such period,
as calculated in accordance with US GAAP and derived from the then
latest unaudited consolidated accounts of the NCLC Group delivered
to the Agent in the case of any period ending at the end of any of
the first three (3) financial quarters of each financial year of the
Borrower and the then latest Accounts delivered to the Agent in the
case of the final quarter of each such financial year;
"CONSOLIDATED EBITDA" means, for any relevant period, the aggregate
of:
(i) Consolidated Net Income from the Borrower's operations for
such period; and
(ii) the aggregate amounts deducted in determining Consolidated Net
Income for such period in respect of gains and losses from the
sale of assets or reserves relating thereto, Consolidated
Interest Expense, depreciation and amortisation, impairment
charges and any other non-cash charges and deferred income tax
expense for such period;
"CONSOLIDATED INTEREST EXPENSE" means, for any relevant period, the
consolidated interest expense (excluding capitalised interest
accrued and not payable during such period) of the NCLC Group for
such period;
"CONSOLIDATED NET INCOME" means, for any relevant period, the
consolidated net income (or loss) of the NCLC Group for such period
as determined in accordance with US GAAP;
"CONTRIBUTION" means as to each Original Lender the sum set out
opposite its name in Schedule 1, being the amount of the Facility
which it is obliged to
5
advance to the Borrower under Clause 2, and/or, as the case may be,
the portion of such sums so advanced and for the time being
outstanding;
"CREDIT SUPPORT DOCUMENT" means any document described as such in a
Master Agreement and any other document referred to in any such
document which has the effect of creating security in favour of the
Agent or the Lenders;
"CREDIT SUPPORT PROVIDER" means any person (other than the Borrower)
described as such in a Master Agreement;
"DISCLOSURE LETTER" means the letter so designated given by the
Borrower and acknowledged by the Agent (acting on the instructions
of the Lenders) on the Signing Date, such letter to include (among
other things) a statement of the Borrower to the effect that no
event or circumstance has occurred since 31 December 2003 which the
Borrower reasonably, in each case, believes has had or will have a
Material Adverse Effect;
"DOLLARS" AND "USD" means the lawful currency of the United States
of America;
"DRAWDOWN DATE", in relation to the Term Loan Facility, means the
date on which the Term Loan Facility is drawn down by the Borrower
pursuant to Clause 2.3 and applied in accordance with Clause 2.2;
"DRAWDOWN NOTICE" means a notice to be given by the Borrower to the
Agent pursuant to Clause 2.3.1;
"DRAWING" means any amount of the Revolving Credit Facility advanced
by the Lenders to the Borrower pursuant to Clause 2.3;
"EARNINGS" means, in respect of a Vessel, (whether earned or to be
earned) any and all freights, hire and passage monies, proceeds of
requisition (other than proceeds of Compulsory Acquisition), rebates
and commissions, all earnings deriving from contracts of employment,
demurrage, charterparties, contracts of affreightment, pooling
agreements and joint ventures, compensation, remuneration for
salvage and towage services, damages howsoever arising and detention
monies, damages for breach of any charterparty or other contract for
the employment of that Vessel, any amounts payable in consideration
of the
6
termination or variation of any charterparty or other such contract
and any other earnings whatsoever due or to become due to the
relevant Owner;
"EARNINGS ASSIGNMENTS" means the three (3) valid and effective first
legal assignments of the Earnings of the Vessels (together with the
notices thereof and the acknowledgements) one (1) to be executed by
each of the Owners in respect of its Vessel in favour of the Agent
such assignments, notices and acknowledgements to be in the form and
on the terms and conditions agreed between the Lenders and the
Borrower and as specified in paragraph 25 of Schedule 3;
"ENCUMBRANCE" means any mortgage, charge, pledge, lien, assignment,
hypothecation, title retention, preferential right or trust
arrangement or any other security agreement or arrangement;
"EVENT OF DEFAULT" means any of the events specified in Clause 13;
"FACILITY" means the Term Loan Facility and the Revolving Credit
Facility;
"FINAL MATURITY DATE" means the date falling seventy two (72) months
from the Signing Date or such other date as is determined by the
provisions of Clause 4 and/or Clause 5;
"FINANCIAL INDEBTEDNESS" means any obligation for the payment or
repayment of money, whether as principal or as surety and whether
present or future, actual or contingent;
"FORCE MAJEURE" means, in relation to the Agent or any Lender, any
event or circumstance which is beyond the reasonable control of such
party, which cannot be foreseen or if foreseeable which is
unavoidable, which occurs after the Signing Date and which prevents
that party from performing any of its obligations under this
Agreement;
"GUARANTEE" means the three (3) joint and several guarantees one (1)
to be executed by each of the Owners in favour of the Agent such
guarantees to be in the form and on the terms and conditions agreed
between the Lenders and the Borrower and as specified in paragraph
27 of Schedule 3;
7
"HEDGING TRANSACTION" means a Transaction entered into between a
Lender or its Affiliate (as the case may be) and the Borrower under
the relevant Master Agreement for the express purpose of hedging all
or part of the Borrower's interest rate risk under this Agreement;
"HOLDING COMPANY" has the meaning defined in the Companies ▇▇▇ ▇▇▇▇,
Section 736 as substituted by the Companies ▇▇▇ ▇▇▇▇, Section 144;
"INDEBTEDNESS FOR BORROWED MONEY" means Financial Indebtedness
(whether present or future, actual or contingent, long-term or
short-term, secured or unsecured) in respect of:
(i) moneys borrowed or raised;
(ii) the advance or extension of credit (including interest and
other charges on or in respect of any of the foregoing);
(iii) the amount of any liability in respect of leases which, in
accordance with US GAAP, are capital leases;
(iv) the amount of any liability in respect of the purchase price
for assets or services payment of which is deferred for a
period in excess of one hundred and eighty (180) days;
(v) all reimbursement obligations whether contingent or not in
respect of amounts paid under a letter of credit or similar
instrument; and
(vi) (without double counting) any guarantee of Financial
Indebtedness falling within paragraphs (i) to (v) above;
PROVIDED THAT the following shall not constitute Indebtedness for
Borrowed Money:
(a) loans and advances made by other members of the NCLC Group
which are subordinated to the rights of the Lenders;
(b) loans and advances made by Star Cruises Limited which are
subordinated to the rights of the Lenders; and
8
(c) any Master Agreement Liabilities.
"INSTALMENT" means the amount of principal of the Term Loan Facility
repayable on a Repayment Date in accordance with Clause 3.1;
"INSURANCE ASSIGNMENTS" means the three (3) valid and effective
first legal assignments of the Insurances of the Vessels (together
with the notices thereof) one (1) to be executed by each of the
Owners in respect of its Vessel in favour of the Agent such
assignments and notices to be in the form and on the terms and
conditions agreed between the Lenders and the Borrower and as
specified in paragraph 26 of Schedule 3;
"INSURANCES" means all policies and contracts of insurance and
entries of a Vessel in a protection and indemnity or war risks
association which are effected in respect of that Vessel, its
freights, disbursements, profits or otherwise and all benefits,
including all claims and returns of premiums thereunder and shall
also include all compensation payable by virtue of Compulsory
Acquisition;
"INTEREST PAYMENT DATE" means the last day of each Interest Period
and if an Interest Period is longer than six (6) months' duration
the date falling at the end of each successive period of six (6)
months during such Interest Period from its commencement;
"INTEREST PERIOD" means each period ascertained in accordance with
Clause 6.2 or Clause 6.7;
"INTEREST RATE" means the rate of interest applicable to the Term
Loan Facility or a Drawing calculated in accordance with Clause 6.5,
Clause 6.7 or Clause 7.3;
"LIBOR" means with respect to any Interest Period the rate of
interest (expressed as an annual rate) determined by the Agent to
be:
(i) the offered rate for deposits in Dollars for a period
equivalent to such Interest Period which appears on the
Reuters Page LIBOR 01 at or about 11.00 a.m. London time on
the Quotation Date; or
(ii) if no rate is provided for the respective Interest Period on
the Reuters Page LIBOR 01, the interpolated rate per annum for
deposits in Dollars in an
9
amount approximately equal to the Drawing as calculated by the
Agent, such interpolated rate to be based on the Reuters Page
LIBOR 01 PROVIDED THAT LIBOR for periods of less than one (1)
week will be ascertained under sub-section (iii) below;
or (if Reuters Page LIBOR 01 is discontinued or if the Agent is
unable to make the said determination due to technical breakdown in
the relevant system or the Interest Period is less than one (1)
week)
(iii) the arithmetic mean (rounded upwards, if necessary, to the
nearest one-sixteenth of one per cent (1/16%)) of the rates
per annum notified to the Agent by each of the Reference Banks
as the rate at which deposits in Dollars in an amount
approximately equal to the Drawing are offered to such
Reference Bank by leading banks in the London Interbank Market
at such Reference Bank's request at or about 11.00 a.m. London
time on the Quotation Date for a period equal to the Interest
Period and for delivery on the first Business Day thereof;
"LENDER" means:
(i) any Original Lender; and
(ii) any bank, financial institution, trust, fund or other entity
which has become a party to this Agreement in accordance with
Clause 20,
which in each case has not ceased to be a party to this Agreement in
accordance with the terms of this Agreement;
"LENDING BRANCH" means in respect of the Agent and each Original
Lender its office at the address set out beneath its name in
Schedule 1 or such other office as it shall from time to time select
and notify through the Agent to the Borrower and the Agent;
"LIM FAMILY" means:
(i) Tan Sri Lim Goh Tong;
(ii) his spouse;
10
(iii) his direct lineal descendants;
(iv) the personal estate of any of the above persons; and
(v) any trust created for the benefit of one or more of the above
persons and their estates;
"MOA" means the memorandum of agreement dated as of 23 April 2004
for the sale and purchase of the Norwegian Spirit Vessel made
between the Seller and Norwegian Spirit;
"MAJORITY LENDERS" means Lenders the aggregate of whose Commitments
exceed sixty seven per cent (67%) of the aggregate total of the
Commitments of all the Lenders;
"MANAGEMENT AGREEMENTS" means:
(i) in respect of the Norwegian Spirit Vessel, the agreement to be
entered into between Norwegian Spirit and the relevant
Manager; and
(ii) in respect of the Norwegian Star Vessel, the agreement dated
23 April 2004 as amended by an agreement made or to be made on
or before the earlier of the Drawdown Date and the first
Advance Date between Norwegian Star and the relevant Manager,
providing for the commercial and technical management and crewing of
these Vessels, and:
(iii) in respect of the Pride of Aloha Vessel, the agreement dated 7
June 2004 as amended by an agreement made or to be made on or
before the earlier of the Drawdown Date and the first Advance
Date between Pride of Aloha and the relevant Manager providing
for the ship management and crewing services of this Vessel,
such agreements to be in the form and on the terms and conditions
agreed between the Agent and the Borrower and as specified in
paragraph 22 of Schedule 3;
11
"MANAGEMENT AGREEMENT ASSIGNMENTS" means the three (3) valid and
effective first legal assignments of the Management Agreements
(together with the notices thereof and the acknowledgements) one (1)
to be executed by each of the Owners in respect of its Vessel in
favour of the Agent such assignments, notices and acknowledgements
to be in the form and on the terms and conditions agreed between the
Lenders and the Borrower and as specified in paragraph 29 of
Schedule 3;
"MANAGER" means NCL (Bahamas) in the case of the Norwegian Spirit
Vessel and the Norwegian Star Vessel and NCL America in the case of
the Pride of Aloha Vessel;
"MANDATORY COST" means the cost imputed to a Lender of compliance
with the mandatory liquid asset requirements of any central bank or
other fiscal, monetary or other authority;
"MASTER AGREEMENT" means any ISDA Master Agreement (or any other
form of master agreement relating to interest or currency exchange
transactions of a non-speculative nature) entered into between a
Lender or its Affiliate and the Borrower before the Signing Date,
including each Schedule to any Master Agreement and each
Confirmation exchanged under any Master Agreement;
"MASTER AGREEMENT LIABILITIES" means, at any relevant time, all
liabilities of the Borrower to a Lender or its Affiliate (as the
case may be) under the relevant Master Agreement, whether actual or
contingent, present or future;
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
validity or enforceability of any of the Security Documents or the
rights or remedies of the Lenders or their Affiliates (as the case
may be) thereunder (ii) the ability of any Obligor to perform its
obligations under any of the Security Documents or (iii) the assets,
business, liabilities, operations, condition (financial or
otherwise) or prospects of the Borrower, any of the Guarantors or
the NCLC Group taken as a whole;
"MATURITY DATE" in relation to a Drawing means the last day of its
Term;
"MAXIMUM FACILITY AMOUNT" means the Maximum Term Loan Facility
Amount or the Maximum Revolving Credit Facility Amount;
12
"MAXIMUM REVOLVING CREDIT FACILITY AMOUNT" means subject to Clause 5
and Clause 11.18 five hundred million Dollars (USD500,000,000);
"MAXIMUM TERM LOAN FACILITY AMOUNT" means subject to Clause 4 and
Clause 11.18 three hundred million Dollars (USD300,000,000);
"MONTH" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar
month save that, where any such period would otherwise end on a day
which is not a Business Day, it shall end on the next Business Day,
unless that day falls in the calendar month succeeding that in which
it would otherwise have ended, in which case it shall end on the
preceding Business Day PROVIDED THAT, if a period starts on the last
Business Day in a calendar month or if there is no numerically
corresponding day in the month in which that period ends, that
period shall end on the last Business Day in that later month;
"MORTGAGES" means (i) the two (2) first priority statutory Bahamian
ship mortgages and deeds of covenants collateral thereto one (1) to
be granted by each of Norwegian Spirit and Norwegian Star over its
Vessel and (ii) the first preferred US ship mortgage to be granted
by Pride of Aloha over its Vessel, in each case in favour of the
Agent as security pursuant hereto and to the Master Agreements such
mortgages and deeds of covenants to be in the forms and on the terms
and conditions agreed between the Lenders and the Borrower and as
specified in paragraph 24 of Schedule 3;
"NCL AMERICA" means NCL America Inc. of Corporation Trust Center,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of
America, the company providing ship management and crewing services
for the Pride of Aloha Vessel pursuant to the relevant Management
Agreement;
"NCL AMERICA HOLDINGS" means NCL America Holdings, Inc. of
Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America;
"NCL (BAHAMAS)" means NCL (Bahamas) Ltd. of ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇, the company providing
commercial and technical management and crewing services for the
Norwegian Spirit Vessel and
13
the Norwegian Star Vessel pursuant to the relevant Management
Agreements and commercial, marketing, sales and financial services
in respect of the Pride of Aloha Vessel pursuant to the Sub-Agency
Agreement;
"NCLC FLEET" means the vessels owned by the companies in the NCLC
Group;
"NCLC GROUP" means the Borrower and its wholly owned Subsidiaries
provided that for the purposes of the definitions of "CASH BALANCE",
"CONSOLIDATED DEBT SERVICE", "CONSOLIDATED INTEREST EXPENSE",
"CONSOLIDATED NET INCOME", "TOTAL CAPITALISATION" and "TOTAL NET
FUNDED DEBT" in this Clause, Clause 11.2 and Clause 11.3 "NCLC
GROUP" means the Borrower, its Subsidiaries and any other entity
which is required to be consolidated in the Borrower's accounts in
accordance with US GAAP;
"NCL INTERNATIONAL" means NCL International, Ltd. of ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇;
"NORWEGIAN SPIRIT" means Norwegian Spirit, Ltd. of ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇;
"NORWEGIAN SPIRIT VESSEL" means the one thousand (1,000) cabin
luxury passenger cruise vessel built in 1998 and named "NORWEGIAN
SPIRIT" (ex "SUPERSTAR ▇▇▇") to be purchased by Norwegian Spirit
from the Seller pursuant to the MOA and re-registered under the laws
and flag of the Bahamas;
"NORWEGIAN STAR" means Norwegian Star Limited of ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ Road, Douglas, Isle of Man IM2 4RB,
British Isles;
"NORWEGIAN STAR VESSEL" means the one thousand one hundred and
twenty (1,120) cabin luxury passenger cruise vessel built in 2001
and named "Norwegian STAR" registered in the name of Norwegian Star
under the laws and flag of the Bahamas;
"NOTIONAL AMOUNT" in respect of any Hedging Transaction, means the
Notional Amount as defined in the Confirmation relating to that
Hedging Transaction;
"OBLIGORS" means the Borrower, the Owners, NCL International, NCL
America Holdings, NCL (Bahamas), NCL America, any other Credit
Support Provider and
14
any other party from time to time to any of the Security Documents
excluding the Agent and the Lenders;
"OUTSTANDING INDEBTEDNESS" means all sums of any kind payable
actually or contingently to the Agent or the Lenders under or
pursuant to this Agreement or any other Transaction Document
(whether by way of repayment of principal, payment of interest or
default interest, payment of any indemnity or counter indemnity,
reimbursement for fees, costs or expenses or otherwise howsoever)
and any Master Agreement Liabilities;
"OWNERS" means Norwegian Spirit, Norwegian Star and Pride of Aloha;
"PERMITTED LIENS" means (i) any Encumbrance created by or pursuant
to the Security Documents (ii) liens on a Vessel up to an aggregate
amount at any time not exceeding five million Dollars (USD5,000,000)
for current crew's wages and salvage and liens incurred in the
ordinary course of trading a Vessel (iii) any deposits or pledges to
secure the performance of bids, tenders, bonds or contracts (iv) any
other Encumbrance notified by any of the Obligors to the Agent prior
to the Signing Date (v) any Encumbrance in respect of existing
Financial Indebtedness of a person which becomes a Subsidiary of the
Borrower or is merged with or into the Borrower or any of its
Subsidiaries (vi) liens on assets leased, acquired or upgraded after
the Signing Date or assets newly constructed or converted after the
Signing Date provided that (a) such liens secure Financial
Indebtedness otherwise permitted under this Agreement (b) such liens
are incurred within one (1) year following such lease, acquisition,
upgrade, construction or conversion and (c) the Financial
Indebtedness secured by such liens does not exceed the cost of such
upgrade or the cost of such assets acquired or leased (vii)
statutory and other similar liens arising in the ordinary course of
business unrelated to Financial Indebtedness and securing
obligations not yet delinquent or which are being contested in good
faith by appropriate proceedings and for which adequate reserves
have been established and (viii) liens arising out of the existence
of judgments or awards in respect of the Borrower or any of its
Subsidiaries, provided that the aggregate amount of all cash and the
fair market value of all other property, subject to such liens does
not exceed ten million Dollars (USD10,000,000);
15
"POSSIBLE EVENT OF DEFAULT" means any event which, with the giving
of notice, passage of time or occurrence of any other event, would
constitute an Event of Default;
"PRIDE OF ALOHA" means Pride of Aloha Inc. of Corporation Trust
Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ of America;
"PRIDE OF ALOHA VESSEL" means the one thousand and one (1,001) cabin
luxury passenger cruise vessel built in 1999 and named "pride of
aloha" registered in the name of Pride of Aloha under the laws and
flag of the United States of America;
"PROCESS AGENT" means ▇▇▇▇▇▇▇▇ Chance Secretaries Limited whose
registered office is presently at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇ or any other person in England nominated by the Borrower or any
other Obligor and approved by the Agent as agent to accept service
of legal proceedings on their behalf under any of the Security
Documents;
"PURCHASE PRICE" means three hundred and seventeen million Dollars
(USD317,000,000) in respect of the Norwegian Spirit Vessel being the
price agreed between the Seller and Norwegian Spirit for the sale
and purchase of a Vessel under clause 1 of the MOA;
"QUOTATION DATE" means, in relation to any Interest Period, the day
two (2) Business Days (in London) prior to the first day of the
relevant Interest Period;
"REFERENCE BANKS" means DnB NOR Bank ASA and Nordea Bank Norge ASA;
"RELEVANT PERCENTAGE" means at any relevant time the percentage that
the valuation of a Vessel obtained in accordance with Clause 11.17
bears to the aggregate of the valuations of the Vessels obtained as
aforesaid at such time;
"RENEWAL NOTICE" means a notice to be given by the Borrower to the
Agent to extend the period of a Term;
"REPAYMENT DATES" means in respect of the Term Loan Facility,
subject to the provisions of Clause 4, (i) the last day of each of
the eleven (11) consecutive periods of six (6) months the first such
period commencing on the Drawdown
16
Date and the eleventh (11th) such period terminating five and a half
(5-1/2) years thereafter and (ii) the Final Maturity Date;
"REUTERS PAGE LIBOR 01" means the display currently designated as
Reuters Page LIBOR 01, which includes London Interbank Offered Rates
of four (4) major banks, which are members of the International
Swaps and Derivatives Association, Inc. or such other service as may
be nominated by the British Bankers' Association as the information
vendor for displaying the London Interbank Offered Rates of major
banks in the London Interbank Market;
"REVOLVING CREDIT FACILITY" means the revolving credit facility
granted hereunder in the Maximum Revolving Credit Facility Amount or
(as the context may require) the amount thereof for the time being
advanced and outstanding under this Agreement;
"REVOLVING CREDIT FACILITY AVAILABILITY PERIOD" means the period
beginning on the Signing Date and ending one (1) month before the
Final Maturity Date;
"REVOLVING CREDIT FACILITY COMMITMENT PERIOD" means the period
beginning on the Signing Date and ending on the earlier of the last
day of the Revolving Credit Facility Availability Period and the
date on which the Revolving Credit Facility is cancelled hereunder;
"SAME DAY FUNDS" means Dollar funds settled through the New York
Clearing House Interbank Payments System or such other funds for
payment in Dollars as the Agent shall specify by notice to the
Borrower as being customary at the time for the settlement of
international transactions in New York of the type contemplated by
this Agreement;
"SECURITY DOCUMENTS" means this Agreement, the Charges, the
Mortgages, the Guarantees, the Earnings Assignments, the Insurance
Assignments, the Management Agreement Assignments, the Sub-Agency
Agreement Assignment, the Master Agreements and any other Credit
Support Documents, any fee letter and all such other documents as
may be executed at any time in favour of the Agent as security for
the obligations of the Borrower and/or the other Obligors whether
executed pursuant to the express provisions of this Agreement or
otherwise howsoever;
17
"SECURITY PERIOD" means the period beginning on the earlier of the
Drawdown Date and the first Advance Date and ending on the date on
which the amounts outstanding under this Agreement and under each of
the other Security Documents are finally and irrevocably repaid
and/or cancelled in full;
"SELLER" means Superstar ▇▇▇ Limited of Douglas, Isle of Man,
British Isles as seller of the Norwegian Spirit Vessel;
"SHAREHOLDER" means NCL International in the case of Norwegian
Spirit and Norwegian Star and NCL America Holdings in the case of
Pride of Aloha;
"SIGNING DATE" means the date of this Agreement;
"SUB-AGENCY AGREEMENT" means the agreement dated 7 June 2004 between
NCL America and the Sub-Agent providing for the commercial,
marketing, sales and financial services in respect of the Pride of
Aloha Vessel, such agreement to be in the form and on the terms and
conditions agreed between the Agent and the Borrower and as
specified in paragraph 23 of Schedule 3;
"SUB-AGENCY AGREEMENT ASSIGNMENT" means the valid and effective
first legal assignment of the Sub-Agency Agreement (together with
the notice thereof and the acknowledgement), to be executed by NCL
America in favour of the Agent, such assignment, notice and
acknowledgement to be in the form and on the terms and conditions
agreed between the Lenders and the Borrower and as specified in
paragraph 30 of Schedule 3;
"SUB-AGENT" means NCL (Bahamas), the company providing commercial,
marketing, sales and financial services in respect of the Pride of
Aloha Vessel pursuant to the Sub-Agency Agreement;
"SUBSIDIARY" has the meaning defined in the Companies ▇▇▇ ▇▇▇▇,
Section 736 as substituted by the Companies ▇▇▇ ▇▇▇▇, Section 144;
"SUBSTITUTE BASIS" means an alternative basis for maintaining a
Drawing certified by the Agent pursuant to Clause 7.3.1;
"SUSPENSION NOTICE" means a notice given by the Agent to the
Borrower pursuant to Clause 7.1;
18
"TAXES" means all present and future income and other taxes, levies,
imposts, deductions, compulsory liens and withholdings whatsoever
together with interest thereon and penalties with respect thereto,
if any, and any payments made on or in respect thereof and
"TAXATION" shall be construed accordingly;
"TERM" means, in relation to a Drawing, the period for which such
Drawing is, or is to be, borrowed, as specified in the Drawdown
Notice for such Drawing and as extended by any Renewal Notice for
such Drawing provided that the Term shall not extend beyond the
Final Maturity Date;
"TERM LOAN FACILITY" means the term loan facility granted hereunder
in the Maximum Term Loan Facility Amount or (as the context may
require) the amount thereof for the time being advanced and
outstanding under this Agreement;
"TERM LOAN FACILITY AVAILABILITY PERIOD" means the period beginning
on the Signing Date and ending on 31 August 2004;
"TERM LOAN FACILITY COMMITMENT PERIOD" means the period beginning on
the Signing Date and ending on the earlier of the Drawdown Date and
the date on which the Term Loan Facility is cancelled hereunder;
"THIRD PARTY" means any person or group of persons acting in concert
(as the expression "ACTING IN CONCERT" is defined in the City Code
on Take-overs and Mergers) who or which is not a member of the Lim
Family;
"TOTAL CAPITALISATION" means, at any date of determination, Total
Net Funded Debt plus the consolidated stockholders' equity of the
NCLC Group at such date determined in accordance with US GAAP and
derived from the then latest unaudited and consolidated accounts of
the NCLC Group delivered to the Agent in the case of the first three
(3) quarters of each financial year and the then latest Accounts
delivered to the Agent in the case of the final quarter of each
financial year;
"TOTAL LOSS" means any actual or constructive or arranged or agreed
or compromised total loss or Compulsory Acquisition of a Vessel;
"TOTAL NET FUNDED DEBT" means, as at any relevant date:
19
(i) Indebtedness for Borrowed Money of the NCLC Group; and
(ii) the amount of any Indebtedness for Borrowed Money of any
person which is not a member of the NCLC Group but which is
guaranteed by a member of the NCLC Group as at such date;
less an amount equal to any Cash Balance as at such date;
"TRANSACTION" means a transaction entered into between a Lender or
its Affiliate (as the case may be) and the Borrower governed by the
relevant Master Agreement;
"TRANSACTION DOCUMENTS" means the Security Documents, the MOA, the
Drawdown Notices, the Renewal Notices, the Management Agreements,
the Sub-Agency Agreement and any other material document now or
hereafter issued in connection with the documents or the transaction
herein referred to;
"TRANSFER CERTIFICATE" means the certificate attached hereto as
Schedule 5;
"TRANSFER DATE" means, in relation to any Transfer Certificate, the
date specified in such Transfer Certificate as the date for the
making of the transfer or, where such transfer is specified as being
subject to the fulfilment of certain conditions, the date on which
the Agent receives a certificate from the Lender making the transfer
confirming that all such conditions have been fulfilled;
"TRANSFEREE" means any reputable bank acceptable to the Agent which
becomes a party to this Agreement as a Lender pursuant to Clause 20;
"US GAAP" means generally accepted accounting principles in the
United States of America consistently applied (or, if not
consistently applied, accompanied by details of the inconsistencies)
including, without limitation, those set forth in the opinion and
pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board; and
"VESSELS" means:
(i) the Norwegian Spirit Vessel;
20
(ii) the Norwegian Star Vessel; and
(iii) the Pride of Aloha Vessel.
1.2 CONSTRUCTION
In this Agreement unless the context otherwise requires:
1.2.1 clause headings are inserted for convenience of reference only
and shall be ignored in the construction of this Agreement;
1.2.2 references to Clauses and to Schedules are to be construed as
references to clauses of and schedules to this Agreement
unless otherwise stated and references to this Agreement are
to be construed as references to this Agreement including its
Schedules;
1.2.3 references to (or to any specified provision of) this
Agreement or any other document shall be construed as
references to this Agreement, that provision or that document
as from time to time amended, supplemented and/or novated;
1.2.4 references to any Act or any statutory instrument shall be
construed as references to that Act or that statutory
instrument as from time to time re-enacted, amended or
supplemented;
1.2.5 references to any party to this Agreement or any other
document shall include reference to such party's successors
and permitted assigns;
1.2.6 words importing the plural shall include the singular and vice
versa;
1.2.7 references to a person shall be construed as references to an
individual, firm, company, corporation, unincorporated body of
persons or any state or any agency thereof;
1.2.8 where any matter requires the approval or consent of the Agent
such approval or consent shall not be deemed to have been
given unless given in writing; where any matter is required to
be acceptable to the Agent shall not be deemed to have
accepted such matter unless its acceptance is
21
communicated in writing; the Agent may give or withhold its
consent, approval or acceptance at its unfettered discretion;
and
1.2.9 a certificate by the Agent as to any amount due or calculation
made hereunder shall be conclusive except for manifest error.
1.3 AGENT
The Agent has been appointed by the Lenders as agent under Clause
22.3 and (unless the context otherwise requires) references herein
to the Agent shall be construed as references to itself and the
Lenders. The Borrower shall only communicate with the Lenders under
this Agreement and the other Security Documents through the Agent
and as hereinafter referred to.
2 THE FACILITY
2.1 AVAILABILITY
2.1.1 The Lenders grant to the Borrower the Term Loan Facility which
shall be available for drawdown by the Borrower in one (1)
amount within the Term Loan Facility Availability Period
subject to the provisions of Clause 2.2 and Clause 2.3.
2.1.2 The Lenders also grant to the Borrower the Revolving Credit
Facility which is of a revolving nature and shall be available
to the Borrower during the Revolving Credit Facility
Availability Period subject to the provisions of Clause 2.2
and Clause 2.3. Each Drawing shall be repaid on its Maturity
Date. However, a Term may be extended to the end of the
succeeding Interest Period in respect of that Drawing by the
giving of a Renewal Notice by the Borrower to the Agent not
later than 9.00 a.m. London time four (4) Business Days prior
to the commencement of the relevant Interest Period.
2.1.3 Each Lender shall advance its Contribution to the Term Loan
Facility or a Drawing (as the case may be) in the proportion
which its Contribution for the time being bears to the other
Contributions of the Lenders to the Facility.
22
2.1.4 None of the Agent or any other Lender shall be liable for any
failure or delay on the part of any Lender in making any
advance hereunder nor shall the Agent have any obligation to
seek to procure additional Lenders in the event of such a
failure PROVIDED THAT if any Lender should fail to advance its
Contribution to an advance hereunder, that Lender and the
Agent will take all reasonable steps to mitigate the effect of
that failure. Notwithstanding the aforesaid proviso, no Lender
shall be obliged to increase its Contribution hereunder in
respect of the failure by any other Lender to fund any
Contribution.
2.2 PURPOSE AND APPLICATION
The Borrower shall apply the Facility in part payment of the
Purchase Price due to the Seller under the MOA, in refinance of the
existing finance in respect of the Norwegian Star Vessel and the
Pride of Aloha Vessel and in payment of fees and expenses incurred
in connection with the Facility and any balance of the Revolving
Credit Facility from time to time may be used for general corporate
and working capital purposes for the Borrower and its Subsidiaries.
2.3 DRAWDOWN
The Borrower shall only draw down the Term Loan Facility or a
Drawing if:
2.3.1 the Agent receives at least four (4) Business Days' notice of
the Borrower's request for such drawing in the form of
Schedule 2;
2.3.2 the Drawdown Date or the Advance Date proposed is a Business
Day within the relevant Availability Period;
2.3.3 any Drawing is in a minimum amount of ten million Dollars
(USD10,000,000) or a whole multiple thereof;
2.3.4 on any Advance Date not more than ten (10) Drawings will be
outstanding;
2.3.5 its drawdown would not result in the amount of the relevant
Facility exceeding the relevant Maximum Facility Amount on the
Drawdown Date or the Advance Date (as the case may be);
23
2.3.6 no Event of Default or Possible Event of Default has occurred
before the date of such drawing and such drawing would not
constitute an Event of Default or Possible Event of Default;
2.3.7 the representations and warranties set out in Clause 10 and
each of the other Security Documents are correct on the date
of such drawing;
2.3.8 it is then lawful for each of the Lenders to make available
its relevant Contribution to the drawing; and
2.3.9 in the case of the first Drawing made under this Agreement,
the Advance Date in respect of that Drawing is on or before 31
August 2004.
2.4 BREAK COSTS
If for any reason the Term Loan Facility or a Drawing is not drawn
down by the Borrower hereunder after the relevant Drawdown Notice
has been given to the Agent pursuant to Clause 2.3, the Borrower
will pay to the Agent for the account of the Lenders such amount as
the Agent may certify as necessary to compensate the Lenders (other
than any Lender whose default has caused the Term Loan Facility or
the Drawing not to be drawn down) for any loss (including any losses
under any Master Agreements) or expense on account of funds
borrowed, contracted for or utilised in order to fund its
Contribution to the Term Loan Facility or the Drawing (as the case
may be). Each Lender shall supply to the Agent a certificate of
break costs which in the absence of manifest error shall be
conclusive as to the amounts due.
2.5 CONDITIONS OF DRAWDOWN
The Agent shall not be under any obligation to advance the Term Loan
Facility or a Drawing hereunder until all the documents and evidence
referred to in the relevant part of Schedule 3 are in the possession
of the Agent in form and substance satisfactory to the Lenders.
2.6 SEVERAL OBLIGATIONS OF THE LENDERS
The obligations and rights of each Lender hereunder are several and
if for any reason the Borrower receives an amount greater than the
aggregate of the Contributions to the Term Loan Facility or the
Drawing (as the case may be), the
24
Borrower forthwith upon the demand of the Agent shall pay to the
Agent (for the account of those Lenders whose Contributions were
exceeded) the amount certified by the Agent as representing the
excess of the amount paid to the Borrower over the due and proper
amount of the Contributions of the Lenders actually received by the
Agent.
2.7 LENDER'S FAILURE TO PERFORM
Subject to Clause 2.1.3, the failure by a Lender to perform its
obligations hereunder shall not affect the obligations of the
Borrower towards any other party hereto nor shall any such other
party be liable for the failure by such Lender to perform its
obligations hereunder.
2.8 FULFILMENT OF CONDITIONS AFTER DRAWDOWN
If the Lenders, acting unanimously, decide (or the Agent in
accordance with Clause 22 decides) to permit the advance of the Term
Loan Facility and/or the first Drawing to the Borrower hereunder
without having received all of the documents or evidence referred to
in Schedule 3, the Borrower will nevertheless deliver the remaining
documents or evidence to the Agent within such period as the Agent
may stipulate and the advance of the Term Loan Facility and/or the
Drawing shall not be construed as a waiver of the Agent's right to
receive the documents or evidence as aforesaid nor shall this
provision impose on the Agent or the Lenders any obligation to
permit the drawing in the absence of any of such documents or
evidence.
3 REPAYMENT OF THE TERM LOAN FACILITY
3.1 Unless otherwise repaid in accordance with the provisions of this
Agreement, the Borrower hereby agrees to repay the Term Loan
Facility by twelve (12) half yearly Instalments of principal on the
Repayment Dates. The first eleven (11) Instalments shall each be in
the amount of seventeen million five hundred thousand Dollars
(USD17,500,000) and the twelfth (12th) and final Instalment shall be
in the amount of one hundred and seven million five hundred thousand
Dollars (USD107,500,000).
25
4 PREPAYMENT OF THE TERM LOAN FACILITY
4.1 VOLUNTARY PREPAYMENT
On giving at least thirty (30) days' prior notice to the Agent, the
Borrower may on the last day of an Interest Period prepay (without
premium or penalty, subject to Clause 4.8) the whole or any relevant
part of the Term Loan Facility (but if in part in an amount of at
least five million Dollars (USD5,000,000) or such lesser amount as
is acceptable to the Agent).
4.2 VOLUNTARY PREPAYMENT IN CASE OF INCREASED COST
At any time after any sum payable by the Borrower has been increased
under Clause 7 or a Lender has made any claim for indemnification
under Clause 7, the Borrower may, after giving to the Agent five (5)
Business Days' notice of its intention to do so, prepay the whole
(but not part only) of that Lender's Contribution to the Term Loan
Facility, subject to Clause 4.8.
4.3 MANDATORY PREPAYMENT IN CASE OF ILLEGALITY
4.3.1 If any change in, or in the interpretation or application of,
any law, regulation or treaty shall make it unlawful in any
jurisdiction applicable to any of the Lenders for that Lender
to make available or maintain its Contribution to the Term
Loan Facility or to give effect to its obligations as
contemplated hereby, the Agent may, by notice thereof to the
Borrower, declare that the relevant Lender's obligations shall
be terminated forthwith whereupon (if any of the Facility has
then been advanced) the Borrower shall prepay forthwith to the
relevant Lender its Contribution to the Term Loan Facility
together with interest thereon to the date of such prepayment
and all other amounts due to such Lender under Clause 4.8 and
under the Security Documents (or, if permitted by the relevant
law, regulation or treaty, at the end of the then current
Interest Period).
4.3.2 A Lender affected by any provision of Clause 4.3.1 shall
promptly inform the Agent after becoming aware of the relevant
change and the Agent shall, as soon as reasonably practicable
thereafter, notify the Borrower of the change and its possible
results. Without affecting the Borrower's
26
obligations under Clause 4.3.1 and in consultation with the
Agent, the affected Lender will then take all such reasonable
steps as may be open to it to mitigate the effect of the
change (for example (and if then possible) by changing its
Lending Branch or transferring some or all of its rights and
obligations under this Agreement to another financial
institution reasonably acceptable to the Borrower and the
Agent). The reasonable costs of mitigating the effect of any
such change shall be borne by the Borrower save where such
costs are of an internal administrative nature and are not
incurred in dealings by any Lender with third parties.
4.4 VOLUNTARY PREPAYMENT FOLLOWING IMPOSITION OF SUBSTITUTE BASIS
The Borrower may notify the Agent within ten (10) days of the
receipt of a certificate from the Agent of a Substitute Basis under
Clause 7.3 whether or not it wishes to prepay the Term Loan
Facility, in which event the Borrower shall forthwith prepay the
Term Loan Facility together with interest accrued thereon at the
rate specified in the relevant certificate of Substitute Basis and
any break costs in accordance with Clause 4.8.
4.5 PREPAYMENT IN CASE OF TOTAL LOSS OF A VESSEL
If a Vessel is or becomes a Total Loss, then the Borrower will,
within thirty (30) days thereof or, if the Agent is satisfied in its
sole discretion that the Total Loss is adequately covered by the
Insurances and that the relevant insurance proceeds will be payable
to the Agent within one hundred and fifty (150) days plus three (3)
business days in Frankfurt, New York and Singapore thereof, by no
later than the date which is one hundred and fifty (150) days plus
three (3) business days in Frankfurt, New York and Singapore after
the date of the event giving rise to such Total Loss prepay the
Relevant Percentage of the Term Loan Facility in accordance with
Clause 4.7, Clause 4.8 and Clause 14.1.
For the purposes of this Clause a Total Loss shall be deemed to have
occurred:
4.5.1 if it consists of an actual loss, at noon Greenwich Mean Time
on the actual date of loss or, if that is not known, on the
date on which the Vessel was last heard of;
27
4.5.2 if it consists of a Compulsory Acquisition, at noon Greenwich
Mean Time on the date on which the requisition is expressed to
take effect by the person requisitioning the Vessel; and
4.5.3 if it consists of a constructive or compromised or arranged or
agreed total loss or damage to the Vessel rendering repair
impracticable or uneconomical or rendering the Vessel
permanently unfit for normal use, at noon Greenwich Mean Time
on the date on which notice claiming the loss of the Vessel is
given to its insurers.
4.6 PREPAYMENT IN CASE OF SALE OF A VESSEL
If a Vessel is sold by the relevant Owner with the prior consent of
the Agent (which consent is not to be unreasonably withheld or
delayed), then the Borrower will concurrent with completion of the
sale prepay the Relevant Percentage of the Term Loan Facility in
accordance with Clause 4.7 and Clause 14.1. Subject to Clause 4.8
hereof, prepayment of the Term Loan Facility consequent upon the
permitted sale of the Vessel shall absolve the Borrower from any
liability to pay prepayment fees or costs.
4.7 EFFECT OF PREPAYMENT
Any notice given by the Borrower under Clause 4.1, Clause 4.2 or
Clause 4.4 shall be irrevocable and shall oblige the Borrower to pay
to the Agent on account of the Lenders the amount or amounts therein
stated on the date therein stated. No amount prepaid under this
Agreement may be redrawn. Each prepayment under this Agreement shall
be applied in satisfaction of the Instalments pro rata. Prepayments
under this Agreement shall be made together with:
4.7.1 accrued interest on the amount to be prepaid to the date of
such prepayment (calculated in respect of any period during
which a Substitute Basis has applied by virtue of Clause 7.3,
at the rate per annum more particularly described in Clause
7.2);
4.7.2 any additional amounts payable under Clause 7.2 and Clause
8.1;
4.7.3 costs certified by the Agent as necessary to compensate the
Lenders for the cost of repaying fixed deposits borrowed to
fund any part of the Term
28
Loan Facility or any part of any Drawing which is prepaid
before the Final Maturity Date in the case of the Term Loan
Facility and before the Maturity Date in the case of any
Drawing or the fixed term by reference to which the relevant
rate of interest has been ascertained; and
4.7.4 all other sums payable by the Borrower to the relevant Lender
under this Agreement including, without limitation, any
accrued commitment fee payable under Clause 16.1.
4.8 BREAK COSTS ON PREPAYMENT
If any repayment or prepayment of the Term Loan Facility or part
thereof is made otherwise than on the last day of an Interest
Period, the Borrower shall pay to the Agent on behalf of the Lenders
on demand such additional amount as the Agent may certify (such
certificate to contain a calculation thereof in reasonable detail)
as necessary to compensate each of the Lenders for any loss
(including the cost of breaking deposits or re-employing funds
(including warehousing and other related costs)) or any losses under
any Master Agreement or expense (including warehousing and other
related costs) on account of funds borrowed, contracted for or
utilised to fund the amount so repaid or prepaid provided that each
Lender shall pay to the Borrower any swap breakage gain actually
received by the Lender under any Master Agreement.
5 REPAYMENT, REDUCTION AND CANCELLATION OF THE REVOLVING CREDIT FACILITY
5.1 REPAYMENT
The Borrower shall repay each Drawing on its Maturity Date. If a
Drawing (the "NEW DRAWING") is to be made on a day on which another
Drawing (the "MATURING DRAWING") is due to be repaid then, subject
to the terms of this Agreement:
5.1.1 the maturing Drawing shall be deemed to have been repaid on
its Maturity Date either in whole (if the new Drawing is equal
to or greater than the maturing Drawing) or in part (if the
new Drawing is less than the maturing Drawing); and
29
5.1.2 to the extent that the maturing Drawing is so deemed to have
been repaid, the principal amount of the new Drawing to be
made on such date shall be deemed to have been credited to the
account of the Borrower by the Agent on behalf of the Lenders
in accordance with the terms of this Agreement and the Lenders
shall only be obliged to make available to the Borrower
pursuant to Clause 2.3 a principal amount equal to the amount
by which the new Drawing exceeds the maturing Drawing.
On the Final Maturity Date, all outstanding Drawings and other sums
(if any) then owing under this Agreement shall in any event be
repaid or paid in full.
5.2 SCHEDULED REDUCTIONS OF COMMITMENTS TO THE REVOLVING CREDIT FACILITY
Without prejudice to any other provision of this Agreement, the
Commitments to the Revolving Credit Facility shall be reduced to
zero on the Final Maturity Date.
5.3 SALE OR TOTAL LOSS OF A VESSEL: MANDATORY CANCELLATION
If at any time during the Security Period a Vessel is sold or is or
becomes a Total Loss, the Commitments to the Revolving Credit
Facility shall be reduced on the date on which the proceeds of such
sale or Total Loss are made available by an amount equal to the
Relevant Percentage.
If, upon reduction of the Commitments to the Revolving Credit
Facility by such amount, the aggregate of the Drawings at such time
exceeds the Commitments to the Revolving Credit Facility as thereby
reduced, the Borrower shall on such date prepay such amount of the
outstanding Drawings as will ensure that immediately thereafter the
aggregate amount of the Drawings will not exceed the Commitments to
the Revolving Credit Facility as so reduced.
5.4 AMOUNTS PAYABLE ON PREPAYMENT
Any prepayment of the Revolving Credit Facility under this Clause 5
shall be made together with such sums as are set out in Clause 4.7.
5.5 NOTICE OF PREPAYMENT
No voluntary prepayment of a Drawing may be effected under this
Clause 5 unless the Borrower shall have given the Agent at least
five (5) Business Days'
30
notice of its intention to make such prepayment. Every notice of
prepayment shall be effective only on actual receipt by the Agent,
shall be irrevocable, shall specify the amount to be prepaid and
shall oblige the Borrower to make such prepayment on the date
specified. Unless and to the extent that the Commitments to the
Revolving Credit Facility are cancelled or reduced on or with effect
from the date of any such prepayment, amounts prepaid may be
re-drawn under this Agreement. The Borrower may not prepay any
Drawing or any part thereof save as expressly provided in this
Agreement.
5.6 VOLUNTARY CANCELLATION OF COMMITMENTS TO THE REVOLVING CREDIT
FACILITY
The Borrower may at any time during the Revolving Credit Facility
Availability Period by notice to the Agent (effective only on actual
receipt) cancel with effect from a date not less than ten (10)
Business Days after the receipt by the Agent of such notice the
whole or any part (being five million Dollars (USD5,000,000) or a
whole multiple thereof but not more than the Available Commitments
of all of the Lenders as at such date) of the total of the Available
Commitments as at such date of all the Lenders. Any such notice of
cancellation, once given, shall be irrevocable and upon such
cancellation taking effect the Commitment of each of the Lenders to
the Revolving Credit Facility shall be reduced proportionately and
the Borrower shall on the date designated in its notice prepay such
amount of the outstanding Drawings as will ensure that immediately
thereafter the aggregate amount of the Drawings will not exceed the
Commitments to the Revolving Credit Facility as so reduced by virtue
of the Borrower's cancellation.
5.7 ADDITIONAL PARTIAL CANCELLATION
The Borrower may also at any time during the Revolving Credit
Facility Availability Period by notice to the Agent (effective only
on actual receipt) cancel with effect from a date not less than five
(5) Business Days after receipt by the Agent of such notice the
whole but not part only, but without prejudice to its obligations
under Clause 7.2 and Clause 9.1, of the Commitment to the Revolving
Credit Facility of any Lender to which the Borrower shall have
become obliged to pay additional amounts under Clause 7.2 or Clause
9.1. Upon any notice of such prepayment being given, the Commitment
of the relevant Lender to the Revolving Credit Facility shall be
reduced to zero and the Borrower shall be obliged to
31
prepay the Contribution of such Lender to the Revolving Credit
Facility on such date.
5.8 PREPAYMENT DURING TERM
The Borrower may at any time by notice to the Agent (effective only
on actual receipt) prepay the whole or any part (being five million
Dollars (USD5,000,000) or such lesser amount as is acceptable to the
Agent of any Drawing prior to its Maturity Date on not less than
five (5) Business Days' notice (whether or not any part of the
Commitment to the Revolving Credit Facility is also being cancelled
on such date pursuant to any provision of this Agreement) and the
Borrower shall when making such prepayment, make such prepayment
together with any amounts as referred to in Clause 5.4.
5.9 MANDATORY CANCELLATION IN CASE OF ILLEGALITY
If any change in, or in the interpretation or application of, any
law, regulation or treaty shall make it unlawful in any jurisdiction
applicable to any of the Lenders for that Lender to make available
or maintain its Contribution to the Revolving Credit Facility or to
give effect to its obligations as contemplated hereby, the Agent
may, by notice thereof to the Borrower, declare that the relevant
Lender's obligations shall be terminated forthwith whereupon (if any
of the Revolving Credit Facility has then been advanced) the
Borrower shall prepay forthwith to the relevant Lender its
Contribution to the Revolving Credit Facility together with interest
thereon to the date of such prepayment and all other amounts due to
such Lender under Clause 5.8 and under the Security Documents (or,
if permitted by the relevant law, regulation or treaty, at the end
of the then current Interest Period).
A Lender affected by any provision of this Clause 5.9 shall promptly
inform the Agent after becoming aware of the relevant change and the
Agent shall, as soon as reasonably practicable thereafter, notify
the Borrower of the change and its possible results. Without
affecting the Borrower's obligations under this Clause 5.9 and in
consultation with the Agent, the affected Lender will then take all
such reasonable steps as may be open to it to mitigate the effect of
the change (for example (and if then possible) by changing its
Lending Branch or transferring some or all of its rights and
obligations under this Agreement to another financial
32
institution reasonably acceptable to the Borrower and the Agent).
The reasonable costs of mitigating the effect of any such change
shall be borne by the Borrower save where such costs are of an
internal administrative nature and are not incurred in dealings by
any Lender with third parties.
5.10 VOLUNTARY CANCELLATION FOLLOWING IMPOSITION OF SUBSTITUTE BASIS
The Borrower may notify the Agent within ten (10) days of the
receipt of a certificate from the Agent of a Substitute Basis under
Clause 7.3 whether or not it wishes to cancel the Revolving Credit
Facility or the relevant part thereof, in which event the Borrower
shall forthwith cancel the Revolving Credit Facility or such
relevant part thereof and prepay such amount of the outstanding
Drawings as will ensure that immediately thereafter the aggregate of
amount of the Drawings will not exceed the Commitments to the
Revolving Credit Facility as so reduced by virtue of the Borrower's
cancellation.
5.11 CANCELLATION IN CASE OF TOTAL LOSS OF A VESSEL
If a Vessel is or becomes a Total Loss, then the Borrower will,
within thirty (30) days thereof or, if the Agent is satisfied in its
sole discretion that the Total Loss is adequately covered by the
Insurances and that the relevant insurance proceeds will be payable
to the Agent on its behalf within one hundred and fifty (150) days
thereof, by no later than the date which is one hundred and fifty
(150) days after the date of the event giving rise to such Total
Loss cancel and prepay the Relevant Percentage of the Revolving
Credit Facility in accordance with Clause 5.3 and Clause 14.1.
The relevant provisions of Clause 4.5 shall be applied to this
Clause to determine when a Total Loss shall be deemed to have
occurred.
5.12 CANCELLATION IN CASE OF SALE OF A VESSEL
If a Vessel is sold by the relevant Owner with the prior consent of
the Agent (which consent is not to be unreasonably withheld or
delayed), then the Borrower will concurrent with completion of the
sale cancel and prepay the Relevant Percentage of the Revolving
Credit Facility in accordance with Clause 5.3 and Clause 14.1.
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6 INTEREST
6.1 PAYMENT OF INTEREST
The Borrower shall pay interest on the Term Loan Facility and each
Drawing at the Interest Rate applicable for each Interest Period in
respect thereof which interest shall be payable in arrears on each
Interest Payment Date.
6.2 SELECTION AND DURATION OF INTEREST PERIODS
The Borrower may give notice to the Agent to be received by the
Agent not later than 9.00 a.m. London time four (4) Business Days
prior to the commencement of each Interest Period, specifying
whether that Interest Period is to be of one (1), three (3) or six
(6) months' duration or of such other period as the Borrower and all
the Lenders may agree. Interest Periods shall commence, in the case
of the first in respect of the Term Loan Facility or a Drawing, on
the Drawdown Date in the case of the Term Loan Facility and on the
relevant Advance Date in the case of a Drawing and, in the case of
Interest Periods other than the first, on the expiry of the
preceding Interest Period. Each Interest Period shall, subject to
the following provisions of this Clause 6, be of a duration selected
by the Borrower as above PROVIDED THAT the final Interest Periods in
respect of each of the Facility shall end on the Final Maturity
Date.
6.3 NO NOTICE AND UNAVAILABILITY
If the Borrower fails to select an Interest Period in accordance
with Clause 6.2 or the Agent certifies that deposits for the period
selected by the Borrower are not available to each of the Lenders in
the ordinary course of business in the London Interbank Market to
fund the Term Loan Facility or the Drawing, the Borrower shall be
deemed to have selected an Interest Period of three (3) months (or
such other period as the Agent may in its sole discretion decide).
6.4 EXTENSION AND SHORTENING OF INTEREST PERIODS
6.4.1 If an Interest Period would otherwise end on a day which is
not a Business Day, the Interest Period shall be extended
until the next following Business Day unless the next
following Business Day falls in the next
34
calendar month in which case the Interest Period will be
shortened to expire on the preceding Business Day.
6.4.2 If an Interest Period commences on the last Business Day in a
month and if there is no day in the month in which the
Interest Period will end which corresponds numerically to the
day on which it begins, the Interest Period shall end on the
last Business Day in that month.
6.5 INTEREST RATE
Subject to Clause 6.7 and Clause 7, the rate of interest applicable
to the Term Loan Facility or a Drawing during an Interest Period
shall be the rate per annum which is the sum of LIBOR, the
Applicable Margin and Mandatory Costs.
6.6 BANK BASIS
Interest, commitment fee and any other payments hereunder or under
any fee letter of an annual nature shall accrue from day to day and
be computed on the basis of a year of three hundred and sixty (360)
days and for the actual number of days elapsed.
6.7 DEFAULT INTEREST
If the Borrower fails to pay on the due date any sum due under this
Agreement or any of the other Security Documents to which it may at
any time be a party, the Borrower shall, without affecting any other
remedy of the Agent or the Lenders, on demand pay interest on such
sum from the due date to the actual date of payment (as well after
as before judgment). Such interest shall accrue on a daily basis at
the higher of the Interest Rate fixed for the latest Interest Period
and the rate computed by the Agent and certified by the Agent to the
Borrower as being the aggregate of (i) the Applicable Margin,
Mandatory Costs and two per cent (2%) and (ii) the greater of (a) in
the case of the Lenders, the average (rounded upwards if necessary
to the next integral multiple of one-sixteenth of one per cent
(1/16%)) of the respective rates per annum at which each of the
Lenders is able to acquire in accordance with its normal practice
deposits in Dollars in successive periods of one (1) month (or for
such shorter period as the Agent may in its sole discretion select)
in the London Interbank Market in an amount equivalent to or
comparable with its relevant Contribution to such sum, and, in the
case of the
35
Agent, the rate per annum at which it is able to acquire in
accordance with its normal practice deposits in Dollars in
successive periods of one (1) month (or for such shorter period as
the Agent may in its sole discretion select) in the London Interbank
Market in an amount equivalent to such sum, as at approximately
11.00 a.m. London time on any relevant day and (b) in the case of
the Lenders, the average (rounded upwards if necessary to the next
integral multiple of one-sixteenth of one per cent (1/16%)) of the
cost to each of the Lenders of funding its relevant Contribution to
such sum, and, in the case of the Agent, the cost of funding such
sum, such interest to be compounded at the end of the period
selected by the Agent and to be payable on demand. In the event of
LIBOR not being available then the Agent shall in its discretion use
the Substitute Basis for its calculation as set out in Clause 7.3.
7 SUBSTITUTE BASIS OF FUNDING
7.1 MARKET DISTURBANCE
Notwithstanding anything to the contrary in this Agreement, if prior
to the commencement of any Interest Period the Agent shall determine
in good faith (which determination shall be conclusive and binding
on the parties hereto) that:
7.1.1 by reason of circumstances affecting the London Interbank
Market adequate and fair means do not exist for ascertaining
the Interest Rate during such Interest Period pursuant to
Clause 6; or
7.1.2 deposits in Dollars of equal duration to such Interest Period
will not be available to any of the Lenders in the London
Interbank Market in sufficient amounts in the ordinary course
of business to fund its relevant Contribution during such
Interest Period; or
7.1.3 by reason of any material change in applicable law or
regulation or of any change in national or international
financial or economic conditions any of the Lenders is unable
to fund or to continue to fund its relevant Contribution
during such Interest Period by deposits obtained in the London
Interbank Market,
then the Agent shall promptly give a notice (being a Suspension
Notice), containing full particulars thereof in reasonable detail to
the Borrower.
36
7.2 SUSPENSION OF DRAWDOWN
If a Suspension Notice is given by the Agent before the advance of
the Term Loan Facility or a Drawing in accordance with Clause 2 then
the Agent shall not be obliged to advance the Term Loan Facility or
any Drawing until notice to the contrary is given by the Agent.
During the period of thirty (30) days from the giving of such
Suspension Notice, the Agent and any Lender affected by the relevant
market disturbance shall consult in good faith with the Borrower
with a view to agreeing to an alternative basis for advancing of the
Facility or any relevant part thereof. If such alternative basis is
agreed between the Borrower, the Agent and the relevant Lender or
Lenders, it shall apply in accordance with its terms.
7.3 CERTIFICATES OF SUBSTITUTE BASIS
7.3.1 If a Facility or part thereof has been advanced before a
Suspension Notice is given, the Lender or Lenders affected by
the relevant market disturbance shall within thirty (30) days
following the date of the Suspension Notice, certify (through
the Agent) in good faith to the Borrower an alternative basis
(being the Substitute Basis) for maintaining its relevant
Contribution affected by the relevant market disturbance. Such
Substitute Basis may be retroactive to the beginning of the
then current Interest Period and may include an alternative
method of fixing the Interest Rate (which shall reflect the
cost to the relevant Lender or Lenders of funding its relevant
Contribution from other sources plus the Applicable Margin) or
alternative Interest Periods for the relevant Facility or any
relevant part thereof, provided always that so far as
practicable any such Substitute Basis shall be computed in a
manner and for periods as similar as possible to those
provided in Clause 6.
7.3.2 Each Substitute Basis so certified shall be binding upon the
Borrower, the Agent and the Lenders and shall be treated as
part of this Agreement.
7.4 REVIEW
So long as any Substitute Basis is in force, the Agent, in
consultation with the Borrower and the Lenders, shall from time to
time, but not less often than
37
monthly, review whether or not the circumstances referred to in
Clause 7.1 still prevail with a view to returning to the normal
provisions of this Agreement.
8 PAYMENTS
8.1 PLACE FOR PAYMENT
All payments by the Borrower under this Agreement or any of the
other Security Documents to which it may at any time be a party
shall be made to the Agent in Same Day Funds by 10.00 a.m. New York
time to Bank of New York, New York, for the account of DnB NOR Bank
ASA, Oslo account no 8033261374 or such other account or bank as the
Agent may from time to time designate.
8.2 DEDUCTIONS AND GROSSING-UP
8.2.1 Each payment to be made by the Borrower to the Agent hereunder
shall be made free and clear of and without deduction for or
on account of Taxes unless the Borrower is required by law to
make such a payment subject to the deduction or withholding of
Taxes, in which case the sum payable by the Borrower in
respect of which such deduction or withholding is required to
be made shall be increased to the extent necessary to ensure
that, after the making of such deduction or withholding, the
Agent receives and retains (free from any liability in respect
of any such deduction or withholding) a net sum equal to the
sum which it would have received and so retained had no such
deduction or withholding been made or required to be made.
8.2.2 Without prejudice to the provisions of Clause 8.2.1, if any
Lender or the Agent on its behalf is required to make any
payment on account of tax (not being a tax imposed on the net
income of its Lending Branch by the jurisdiction in which it
is incorporated or in which its Lending Branch is located or
any other tax existing and applicable on the Signing Date
under the laws of any jurisdiction) or otherwise on or in
relation to any sum received or receivable hereunder by such
Lender or the Agent on its behalf (including, without
limitation, any sum received or receivable under this Clause
8) or any liability in respect of any such payment is
asserted, imposed, levied or assessed against such Lender or
the Agent on
38
its behalf, the Borrower shall, upon demand of the Agent,
indemnify such Lender or the Agent against such payment or
liability, together with any interest, penalties and expenses
payable or incurred in connection therewith other than
interest penalties and expenses that are otherwise imposed or
asserted on account of the bad faith or wilful neglect of such
Lender or Agent. If any Lender proposes to make a claim under
the provisions of this Clause 8.2.2 it shall certify to the
Borrower in reasonable detail within thirty (30) days (or such
longer period as any Lender may reasonably require) after
becoming aware of the event by reason of which it is entitled
to make its claim or claims the basis of its claim or claims,
such certificate to be conclusive, save for manifest error.
8.3 PRODUCTION OF RECEIPTS FOR TAXES
If the Borrower makes any payment hereunder in respect of which it
is required by law to make any deduction or withholding, it shall
pay the full amount to be deducted or withheld to the relevant
taxation or other authority within the time allowed for such payment
under applicable law and shall deliver to the Agent within thirty
(30) days after it has made such payment to the applicable authority
any original receipt issued by such authority evidencing the payment
to such authority of all amounts so required to be deducted or
withheld from such payment.
If an additional payment is made under Clause 8.2.2 and any Lender
or the Agent on its behalf determines that it has received or been
granted a credit against or relief of or calculated with reference
to the deduction or withholding giving rise to such additional
payment, such Lender or the Agent shall, to the extent that it can
do so without prejudice to the retention of the amount of such
credit, relief, remission or repayment, pay to the Borrower such
amount as such Lender or the Agent shall in its opinion have
concluded to be attributable to the relevant deduction or
withholding. Any such payment shall be conclusive evidence of the
amount due to the Borrower hereunder and shall be accepted by the
Borrower in full and final settlement of its rights of reimbursement
hereunder in respect of such deduction or withholding. Nothing
herein contained shall interfere with the right of any Lender and
the Agent to arrange their respective tax affairs in whatever manner
they think fit.
39
8.4 MONEY OF ACCOUNT
If any sum due from the Borrower under this Agreement or any other
Security Document to which it may at any time be a party, or any
order or judgment given or made in relation thereto, has to be
converted from the currency (the "FIRST CURRENCY") in which the same
is payable under such Security Document, order or judgment into
another currency (the "SECOND CURRENCY") for the purpose of:
8.4.1 making or filing a claim or proof against the Borrower;
8.4.2 obtaining an order or judgment in any court or other tribunal;
or
8.4.3 enforcing any order or judgment given or made in relation
thereto;
the Borrower shall indemnify and hold harmless the Agent and each of
the Lenders from and against any damages or losses suffered as a
result of any discrepancy between (i) the rate of exchange used to
convert the sum in question from the first currency into the second
currency and (ii) the rate or rates of exchange at which each
Lender, the Agent may in the ordinary course of business purchase
the first currency with the second currency upon receipt of a sum
paid to it in satisfaction, in whole or in part, of any such order,
judgment, claim or proof. The above indemnity shall constitute an
obligation of the Borrower separate and independent from its other
obligations and shall apply irrespective of any indulgence granted
by the Agent or any of the Lenders.
8.5 ACCOUNTS
The Agent shall maintain in accordance with its usual practice
accounts evidencing the amounts from time to time lent by and owing
to each of the Lenders hereunder or under any of the other Security
Documents. In any legal action or proceeding arising out of or in
connection with this Agreement or any other Security Documents, the
entries made in the accounts so maintained shall be prima facie
evidence, save in the case of manifest error, of the existence and
amounts of the obligations of the Borrower recorded therein.
8.6 EARNINGS
Provided no Event of Default or Possible Event of Default has
occurred (following which the Agent shall (inter alia) be entitled
to request the Owners to
40
give notice pursuant to Clause 3 of the Earnings Assignments and
apply the Earnings in accordance with Clause 14.1) the Earnings
shall throughout the Security Period be at the free disposal of the
Owners.
8.7 CONTINUING SECURITY
The security created by this Agreement and each of the other
Security Documents shall be held by the Agent and/or the Lenders as
a continuing security for the repayment of the Outstanding
Indebtedness and the security so created shall not be satisfied by
any intermediate payment or satisfaction of any part of the amount
hereby or thereby secured or by any amendment of this Agreement or
any of the other Security Documents. Such security shall be in
addition to and shall not in any way be prejudiced or affected by
any collateral or other security now or hereafter held by the Agent
or the Lenders or any of them for all or any part of the amount
hereby or thereby secured or any other right or remedy of the Agent
or the Lenders or any of them under this Agreement or any of the
other Security Documents, by operation of law or otherwise howsoever
arising. All the powers arising from any and all such security may
be exercised from time to time as the Agent or the Lenders or any of
them may deem expedient.
8.8 MITIGATION
Without affecting the Borrower's obligations under Clause 8.2 the
affected Lender shall take such reasonable steps as may be open to
it to mitigate the effect of any tax withholding requirement. The
reasonable costs of mitigating the effect shall be borne by the
Borrower.
9 YIELD PROTECTION AND FORCE MAJEURE
9.1 INCREASED COSTS
9.1.1 If by reason of:
(a) any change in law or in its interpretation or
administration; and/or
(b) compliance with any request from or requirement of any
central bank or other fiscal, monetary or other
authority including but without limitation the Basle
Committee on Banking Regulations and Supervisory
Practices whether or not having the force of law:
41
(i) any of the Lenders or an Associated Company incurs
a cost as a result of the relevant Lender
performing its obligations under this Agreement
and/or its advancing its Contribution hereunder;
or
(ii) there is any increase in the cost to any of the
Lenders or an Associated Company of the relevant
Lender funding or maintaining all or any of the
advances comprised in a class of advances formed
by or including its Contribution advanced or to be
advanced by it hereunder; or
(iii) any of the Lenders or an Associated Company incurs
a cost as a result of the relevant Lender having
entered into and/or its assuming or maintaining
its commitment under this Agreement; or
(iv) any of the Lenders or an Associated Company
becomes liable to make any payment on account of
Tax or otherwise (other than Tax on its overall
net income) on or calculated by reference to the
amount of the relevant Lender's Contribution
advanced or to be advanced hereunder and/or any
sum received or receivable by it hereunder; or
(v) any of the Lenders or an Associated Company
suffers any decrease in its rate of return as a
result of any changes in the requirements relating
to capital ratios, monetary control ratios,
reserve assets, the payment of special deposits,
liquidity costs or other similar requirements
affecting that Lender or Associated Company,
except to the extent included in the Mandatory Cost then the
Borrower shall from time to time on demand pay to the Agent
for the account of the relevant Lender, Lenders, Associated
Company or Associated Companies amounts sufficient to
indemnify the relevant Lender, Lenders, Associated Company or
Associated Companies against, as the case may be, such cost,
such increased cost (or such proportion of such increased cost
as is in the
42
reasonable opinion of the relevant Lender, Lenders, Associated
Company or Associated Companies attributable to the funding or
maintaining of the relevant Lender or Lenders' Contribution(s)
hereunder) or such liability.
9.1.2 A Lender affected by any provision of Clause 9.1.1 shall
promptly inform the Agent after becoming aware of the relevant
change or request and its possible results and the Agent
shall, as soon as reasonably practicable thereafter, notify
the Borrower of the change or request and its possible
results. Without affecting the Borrower's obligations under
Clause 9.1.1 and in consultation with the Agent, the affected
Lender will then take all such reasonable steps as may be open
to it to mitigate the effect of the change or request (for
example (if then possible) by changing its Lending Branch or
transferring some or all of its rights and obligations under
this Agreement to another financial institution reasonably
acceptable to the Agent and after consultation with the
Borrower). The reasonable costs of mitigating the effect of
any such change shall be borne by the Borrower save where such
costs are of an internal administrative nature and are not
incurred in dealings by any Lender with third parties.
9.2 FORCE MAJEURE
Where the Agent or any Lender (the "NON-PERFORMING PARTY") is
prevented from performing any of its obligations under this
Agreement by reason of Force Majeure this Agreement shall remain in
effect but the Non-Performing Party's relevant obligations shall be
suspended for so long as the Force Majeure continues and to the
extent that the Non-Performing Party is so prevented, PROVIDED THAT:
9.2.1 the suspension of performance is of no greater scope and of no
longer duration than is required by the Force Majeure;
9.2.2 the obligations of the Non-Performing Party shall not be
excused as a result of the Force Majeure; and
9.2.3 in respect of the suspension of the Non-Performing Party's
obligations:
(a) the Non-Performing Party gives the Agent prompt written
notice which the Agent shall forthwith upon receipt send
to the Borrower
43
describing the circumstances of Force Majeure (including
the nature of the occurrence, its expected duration and
the effects of the Force Majeure on the ability of the
Non-Performing Party to perform its relevant
obligations), and continues to furnish weekly reports
with respect thereto during the period of Force Majeure;
(b) the Non-Performing Party uses all reasonable efforts to
remedy its inability to perform and to mitigate the
effects of the Force Majeure; and
(c) as soon as reasonably possible after the cessation of
the Force Majeure the Non-Performing Party shall notify
the Agent (who shall notify the Borrower) in writing of
such cessation and shall resume performance of its
obligations under this Agreement if such resumption is
then possible.
10 REPRESENTATIONS AND WARRANTIES
10.1 DURATION
The representations and warranties in Clause 10.2 and Clause 10.3
shall survive the execution of this Agreement and shall be deemed to
be repeated, with reference mutatis mutandis to the facts and
circumstances subsisting, as if made on each day until the Borrower
has no remaining obligations, actual or contingent, under or
pursuant to this Agreement or any of the other Security Documents.
10.2 REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and each of the
Lenders that:
10.2.1 STATUS Each Obligor is a corporation duly organised,
constituted and validly existing under the laws of the
country of its incorporation, possessing perpetual corporate
existence, the capacity to ▇▇▇ and be sued in its own name
and the power to own and charge its assets and carry on its
business as it is now being conducted.
10.2.2 POWERS AND AUTHORITY Each of the Obligors has the power to
enter into and perform this Agreement and those of the other
Security Documents to which it is a party and the
transactions contemplated hereby and thereby
44
and has taken all necessary action to authorise the entry
into and performance of this Agreement and such other
Security Documents and such transactions.
10.2.3 LEGAL VALIDITY This Agreement constitutes legal, valid and
binding obligations of the Borrower enforceable in
accordance with its terms and in entering into this
Agreement and borrowing the Facility, the Borrower is acting
on its own account. Each other Transaction Document
constitutes (or will constitute when executed) legal, valid
and binding obligations of each Obligor expressed to be a
party thereto enforceable in accordance with their
respective terms.
10.2.4 NON-CONFLICT WITH LAWS The entry into and performance of
this Agreement and the other Transaction Documents and the
transactions contemplated hereby and thereby do not and will
not conflict with:
(a) any law or regulation or any official or judicial order;
or
(b) the constitutional documents of any Obligor; or
(c) any agreement or document to which any Obligor is a
party or which is binding upon such Obligor or any of
its assets,
nor result in the creation or imposition of any Encumbrance
on an Obligor or its assets pursuant to the provisions of
any such agreement or document.
10.2.5 NO DEFAULT Save as disclosed in the Disclosure Letter, no
event has occurred which constitutes a default under or in
respect of any Transaction Document to which any Obligor is
a party or by which any Obligor may be bound (including
(inter alia) this Agreement) and no event has occurred
which, with the giving of notice, lapse of time,
determination of materiality or other condition might
constitute a default under or in respect of any such
Transaction Document and no event has occurred which
constitutes a default under or in respect of any agreement
or document to which any Obligor is a party or by which any
Obligor may be bound to an extent or in a manner which might
have a material adverse effect on its business, assets or
financial condition and no event has
45
occurred which, with the giving of notice, lapse of time,
determination of materiality or other condition might
constitute a default under or in respect of any such
agreement or document.
10.2.6 CONSENTS Except for the prior consent of the Bermuda
Monetary Authority for the granting of the security interest
over the shares comprised in the Charged Property (as
defined in the Charge in respect of Norwegian Spirit) and
the transfer and registration of the shares comprised in the
said Charged Property to or in the name of the Agent or its
nominee under clause 9.2.4 of the said Charge, for the
filing of those Security Documents which require
registration in the Companies Registries in the Isle of Man,
England and Wales, the United States of America and/or
Bermuda, which filing must be completed within one (1) month
and twenty one (21) days respectively of the execution of
the relevant Security Document(s) in the case of the Isle of
Man and England and Wales, and for the registration of the
Mortgages through the Bahamas Maritime Authority and the US
Coast Guard National Vessel Documentation Center
respectively, all authorisations, approvals, consents,
licences, exemptions, filings, registrations, notarisations
and other matters, official or otherwise, required in
connection with the entry into, performance, validity and
enforceability of this Agreement and each of the other
Transaction Documents and the transactions contemplated
thereby have been obtained or effected and are in full force
and effect.
10.2.7 ACCURACY OF INFORMATION All information furnished by any
Obligor relating to the business and affairs of any Obligor
in connection with this Agreement and the other Transaction
Documents was and remains true and correct in all material
respects and there are no other material facts or
considerations the omission of which would render any such
information misleading.
10.2.8 FULL DISCLOSURE Each Obligor has fully disclosed in writing
to the Agent all facts relating to each Obligor which it
knows or should reasonably know and which might reasonably
be expected to influence the Lenders in deciding whether or
not to enter into this Agreement.
46
10.2.9 NO ENCUMBRANCES None of the assets or rights of any Obligor
is subject to any Encumbrance except Permitted Liens.
10.2.10 PARI PASSU OR PRIORITY STATUS The claims of the Agent and
the Lenders against the Borrower under this Agreement will
rank at least pari passu with the claims of all unsecured
creditors of the Borrower (other than claims of such
creditors to the extent that they are statutorily preferred)
and in priority to the claims of any creditor of the
Borrower who is also an Obligor.
10.2.11 SOLVENCY The Borrower is and shall remain, after the advance
to it of the Facility or any of it, solvent in accordance
with the laws of Bermuda and the United Kingdom and in
particular with the provisions of the United Kingdom's
Insolvency Act 1986 (as from time to time amended) and the
requirements thereof.
10.2.12 WINDING-UP, ETC. Neither the Borrower nor any other Obligor
has taken any corporate action nor have any other steps been
taken or legal proceedings been started or (to the best of
its knowledge and belief) threatened against any of them for
the winding-up, dissolution or for the appointment of a
liquidator, administrator, receiver, administrative
receiver, trustee or similar officer of any of them or any
or all of their assets or revenues nor have either sought
any other relief under any applicable insolvency or
bankruptcy law.
10.2.13 ACCOUNTS The consolidated audited accounts of the NCLC Group
for the period ending on 31 December of each financial year
during the currency of this Agreement (which accounts will
be prepared in accordance with US GAAP) will fairly
represent the financial condition of the NCLC Group as shown
in such audited accounts.
10.2.14 LITIGATION Save as disclosed in writing to the Agent prior
to the Signing Date by way of the Disclosure Letter, no
litigation, arbitration or administrative proceedings are
current or pending or, to its knowledge, threatened, which
might, if adversely determined, have a material adverse
effect on the business, assets or financial condition of any
Obligor. For the avoidance of doubt, the disclosure of any
such litigation, arbitration or
47
administrative proceedings after the Signing Date shall not
be deemed to be a fact and circumstance subsisting at any
time that this representation is deemed to be repeated
pursuant to Clause 10.1.
10.2.15 TAX LIABILITIES The NCLC Group has complied with all
taxation laws in all jurisdictions in which it is subject to
Taxation and has paid all Taxes due and payable by it; no
material claims are being asserted against it with respect
to Taxes, which might, if such claims were successful, have
a material adverse effect on its business, assets or
financial condition.
10.2.16 OWNERSHIP OF ASSETS Each member of the NCLC Group has good
and marketable title to all its assets which is reflected in
the audited accounts referred to in Clause 10.2.13.
10.2.17 NO IMMUNITY None of the Obligors nor any of their respective
assets enjoys any right of immunity (sovereign or otherwise)
from set-off, suit or execution in respect of their
obligations under this Agreement or any of the other
Transaction Documents or by any relevant or applicable law.
10.2.18 TAXES ON PAYMENTS As at the Signing Date all amounts payable
by them hereunder may be made free and clear of and without
deduction for or on account of any Taxation.
10.2.19 PLACE OF BUSINESS None of the Obligors has a place of
business in any jurisdiction (except as already disclosed)
which requires any of the Security Documents to be filed or
registered in that jurisdiction to ensure the validity of
the Security Documents to which it is a party.
10.2.20 OWNERSHIP OF SHARES All the authorised and issues shares in
Norwegian Spirit, Norwegian Star and NCL (Bahamas) are
legally and beneficially owned by NCL International, all the
authorised and issued shares in Pride of Aloha and NCL
America are legally and beneficially owned by NCL America
Holdings, all the authorised and issued shares in NCL
International and NCL America Holdings are legally and
beneficially owned by Arrasas and all the authorised and
issued shares in Arrasas are legally and beneficially owned
by the Borrower and such structure shall remain so
throughout the Security Period. Further, no Event of Default
48
has occurred under Clause 13.1.16 in respect of the
ownership and/or control of the shares in the Borrower.
10.2.21 COMPLETENESS OF DOCUMENTS The copies of the MOA, the
Management Agreements, the Sub-Agency Agreement and any
other relevant third party agreements delivered to the Agent
are true and complete copies of each such document
constituting valid and binding obligations of the parties
thereto enforceable in accordance with their respective
terms and no amendments thereto or variations thereof have
been agreed nor has any action been taken by the parties
thereto which would in any way render such document
inoperative or unenforceable.
10.2.22 NO UNDISCLOSED COMMISSIONS There are and will be no
commissions, rebates, premiums or other payments by or to or
on account of any Obligor, their shareholders or directors
in connection with the transaction as a whole other than as
disclosed to the Agent in writing.
10.2.23 ENVIRONMENT Each of the Obligors:
(a) is in compliance with all applicable federal, state,
local, foreign and international laws, regulations,
conventions and agreements relating to pollution
prevention or protection of human health or the
environment (including, without limitation, ambient air,
surface water, ground water, navigable waters, water of
the contiguous zone, ocean waters and international
waters), including without limitation, laws,
regulations, conventions and agreements relating to:
(i) emissions, discharges, releases or threatened
releases of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous materials,
oil, hazard substances, petroleum and petroleum
products and by-products ("MATERIALS OF
ENVIRONMENTAL CONCERN"); or
(ii) the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or
handling of
49
Materials of Environmental Concern (such laws,
regulations, conventions and agreements the
"ENVIRONMENTAL LAWS");
(b) has all permits, licences, approvals, rulings,
variances, exemptions, clearances, consents or other
authorisations required under applicable Environmental
Laws ("ENVIRONMENTAL APPROVALS") and are in compliance
with all Environmental Approvals required to operate its
business as presently conducted or as reasonably
anticipated to be conducted;
(c) has not received any notice, claim, action, cause of
action, investigation or demand by any other person,
alleging potential liability for, or a requirement to
incur, investigatory costs, clean-up costs, response
and/or remedial costs (whether incurred by a
governmental entity or otherwise), natural resources
damages, property damages, personal injuries, attorney's
fees and expenses or fines or penalties, in each case
arising out of, based on or resulting from:
(i) the presence or release or threat of release into
the environment of any Material of Environmental
Concern at any location, whether or not owned by
such person; or
(ii) circumstances forming the basis of any violation,
or alleged violation, of any Environmental Law or
Environmental Approval ("ENVIRONMENTAL CLAIM");
and
there are no circumstances that may prevent or interfere
with such full compliance in the future.
There is no Environmental Claim pending or threatened
against any of the Obligors.
There are no past or present actions, activities,
circumstances, conditions, events or incidents, including,
without limitation, the release, emission, discharge or
disposal of any Material of Environmental Concern, that
could form the basis of any Environmental Claim against any
of the Obligors.
50
10.2.24 MONEY LAUNDERING Any borrowing by the Borrower hereunder,
and the performance of its obligations hereunder and under
the other Security Documents, will be for its own account
and will not involve any breach by it of any law or
regulatory measure relating to "money laundering" as defined
in Article 1 of the Directive (91/308/EEC) of the Council of
the European Communities.
11 UNDERTAKINGS
11.1 DURATION
The undertakings in this Clause 11 shall survive the execution of
this Agreement.
11.2 INFORMATION
11.2.1 The Borrower will provide to the Agent (or will procure the
provision of):
(a) as soon as practicable (and in any event within one
hundred and twenty (120) days after the close of each
of its financial years) a Certified Copy of its
Accounts (commencing with the audited accounts made up
to 31 December 2004);
(b) as soon as practicable (and in any event within forty
five (45) days after the close of each quarter of each
financial year) a Certified Copy of the unaudited
consolidated accounts of the NCLC Group for that
quarter (commencing with the unaudited accounts made up
to 30 June 2004);
(c) as soon as practicable (and in any event within forty
five (45) days after the close of each quarter of each
financial year), beginning with the quarter ending 30
June 2004, quarterly cash flow projections on a
consolidated basis of the NCLC Group showing on a
monthly basis advance ticket sales (for at least twelve
(12) months following the date of such statement) for
the NCLC Group, together with a certificate of the NCLC
Group's chief financial officer stating that no Event
of Default or Possible Event of Default has occurred
and is continuing, or setting forth in detail any such
Event of Default or Possible Event of Default and any
51
steps being taken by the Borrower or any other Obligor to cure
the same;
(d) as soon as practicable (and in any event not later than 31
January of each financial year):
(i) a budget for the NCLC Group for such new financial year
including a twelve (12) month liquidity budget for such
new financial year; and
(ii) updated financial projections of the NCLC Group for at
least the next five (5) years (including an income
statement and projected results for the operation of the
vessels owned and/or operated by any member of the NCLC
Group) and an outline of the assumptions supporting such
budget and financial projections and details of any
scheduled dry-docking of any of the vessels owned and/or
operated by companies in the NCLC Group during such new
financial year;
(e) within thirty (30) days of the end of each of the second and
fourth financial quarters of each financial year of the
Borrower and at such other times as the Agent may from time to
time reasonably require, a valuation of each of the Vessels
obtained in accordance with the provisions of Clause 11.17;
(f) as soon as practicable (and in any event within forty five
(45) days after the close of each quarter of its financial
year) a statement signed by the NCLC Group's chief financial
officer in the form of Schedule 6 (commencing with the second
quarter of the financial year ending 31 December 2004) and
such other information as the Agent may request;
(g) promptly, such further information in its possession or
control regarding its financial condition and operations and
those of any company in the NCLC Group as the Agent may
request; and
52
(h) details of any material litigation, arbitration or
administrative proceedings which affect any Obligor as soon as
the same are instituted and served, or, to the knowledge of
the Borrower, threatened (and for this purpose proceedings
shall be deemed to be material if they involve a claim in an
amount exceeding five million Dollars (USD5,000,000) or the
equivalent in another currency).
All accounts required under this Clause 11.2 shall be prepared in
accordance with US GAAP and shall fairly represent the financial
condition of the relevant company.
11.3 FINANCIAL UNDERTAKINGS
The Borrower will ensure that:
11.3.1 at all times the minimum Cash Balance will be not less than
fifty million Dollars (USD50,000,000);
11.3.2 as at 31 December 2004 and as at the end of each subsequent
financial quarter either:
(a) the ratio of Consolidated EBITDA to Consolidated Debt
Service for the NCLC Group as at the end of the relevant
financial quarter, computed for the period of the four
(4) consecutive financial quarters ending at the end of
the relevant financial quarter, shall not be less than:
(i) for the financial quarter ending on 31 December
2004, one point two (1.2) to one (1.0); and
(ii) for each subsequent financial quarter, one point
two five (1.25) to one (1.0); or
(b) the NCLC Group has maintained a minimum Cash Balance
during such period of twelve (12) months ending as at
the end of the relevant financial quarter in an amount
which is not less than whichever is the greater of:
53
(i) one hundred million Dollars (USD100,000,000); and
(ii) seven point five per cent (7.5%) of Total Net
Funded Debt,
as at the end of the relevant financial quarter and each
of the three (3) preceding financial quarters; and
11.3.3 as at 31 December 2004 and as at the end of each subsequent
financial quarter, the ratio of Total Net Funded Debt to
Total Capitalisation of the NCLC Group shall not exceed:
(a) nought point six five (0.65) to one (1.0) for financial
quarters ending on or before 31 December 2007; and
(b) nought point six (0.6) to one (1.0) for each subsequent
financial quarter.
Amounts available for drawing under the Facility or any other
revolving or other credit facilities of the NCLC Group which
remain undrawn at the time of the relevant calculation shall
not be counted as cash or indebtedness for the purposes of
this ratio.
11.3.4 Save as specified in Clause 11.3.2, the ratios referred to
in this Clause 11.3 will be measured on a quarterly basis
by reference to the consolidated accounts of the NCLC
Group.
11.4 DIVIDENDS
11.4.1 During any financial year of the Borrower until the date on
which the Borrower becomes a listed company on an Approved
Stock Exchange (on which date the restriction contained in
this Clause 11.4.1 shall cease to apply), the Borrower shall
not and shall procure that no other member of the NCLC Group
shall, pay any dividends or make any other distributions in
respect of its share capital to any person which during any
financial year of the Borrower in aggregate exceeds fifty per
cent (50%) of the Consolidated Net Income (if positive) of
the NCLC Group for such financial year PROVIDED HOWEVER THAT
(whether before or after the Borrower becomes a listed
company on an Approved Stock Exchange)
54
the NCLC Group shall not be entitled to pay any dividend or
make any distribution in respect of any of its share capital
if an Event of Default has occurred and is continuing or
would occur as a result of the payment of such dividend or
the making of such distribution and shall provide the Agent
with a certificate signed by the chief financial officer of
the NCLC Group confirming that no Event of Default has
occurred and is continuing or would occur as a result of the
payment of a dividend or the making of a distribution before
such dividend is paid or distribution is made.
11.4.2 Subject to Clause 11.4.1, the Borrower will procure that any
dividends or other distributions and interest paid or payable
in connection therewith received by NCL International, NCL
America Holdings and/or Arrasas will be paid to the Borrower
by way of dividend promptly on receipt.
11.5 NOTIFICATION OF DEFAULT
The Borrower will notify the Agent of any Event of Default or
Possible Event of Default forthwith upon any Obligor becoming aware
of the occurrence thereof. Upon the Agent's request from time to
time the Borrower will issue a certificate stating whether any
Obligor is aware of the occurrence of any Event of Default or
Possible Event of Default.
11.6 CONSENTS AND REGISTRATIONS
The Borrower will procure that (and will promptly furnish Certified
Copies to the Agent of) all such authorisations, approvals,
consents, licences and exemptions as may be required under any
applicable law or regulation to enable it or any Obligor to perform
its obligations under, and ensure the validity or enforceability of,
each of the Transaction Documents are obtained and promptly renewed
from time to time and will procure that the terms of the same are
complied with at all times. Insofar as such filings or registrations
have not been completed on or before the earlier of the Drawdown
Date and the first Advance Date the Borrower will procure the filing
or registration within applicable time limits of each Security
Document which requires filing or registration together with all
ancillary documents required to preserve the priority and
enforceability of the Security Documents.
55
11.7 NEGATIVE PLEDGE
The Borrower will not create or permit to subsist any Encumbrance on
the whole or any part of its or the Owners' present or future
assets, except for the following:
11.7.1 Encumbrances created with the prior consent of the Lenders;
or
11.7.2 Permitted Liens.
11.8 DISPOSALS
Except with the prior consent of all the Lenders, the Borrower shall
not (and will procure that no other company in the NCLC Group
shall), either in a single transaction or in a series of
transactions whether related or not and whether voluntarily or
involuntarily, sell, transfer, lease or otherwise dispose of all or
a substantial part of its assets except that the following disposals
shall not be taken into account:
11.8.1 disposals made in the ordinary course of trading of the
disposing entity (excluding disposal of ships) including
without limitation, the payment of cash as consideration for
the purchase or acquisition of any asset or service or in the
discharge of any obligation incurred for value in the
ordinary course of trading;
11.8.2 disposals of cash raised or borrowed for the purposes for
which such cash was raised or borrowed;
11.8.3 disposals of assets in exchange for other assets comparable
or superior as to type and value; and
11.8.4 a vessel owned by any member of the NCLC Group (other than
the Owners) may be sold provided such sale is on a willing
seller willing buyer basis at or about market rate and at
arm's length subject always to the provisions of any loan
documentation for the financing of such vessel.
56
11.9 PURCHASES
Except with the prior consent of all the Lenders, the Borrower shall
not (and will procure that no other company in the NCLC Group
shall), either in a single transaction or in a series of
transactions whether related or not purchase any asset:
11.9.1 other than on arm's length terms;
11.9.2 which is not for its use in its ordinary course of business;
or
11.9.3 the cost of which is more than its fair market value at the
date of acquisition.
11.10 CHANGE OF NAME OR BUSINESS
Except with the prior consent of the Majority Lenders, the Borrower
shall not change its name or make or threaten to make any
substantial change in its business as presently conducted or carry
on any other business which is substantial in relation to its
business as presently conducted so as to affect, in the opinion of
the Agent, the Borrower's ability to perform its obligations
hereunder and shall not form any further subsidiaries and the
Borrower will procure that the other Obligors continue, throughout
the Security Period, to perform their current business activities
PROVIDED THAT any new leisure or hospitality venture embarked upon
by any member of the NCLC Group (other than the Borrower) shall not
constitute a substantial change in its business.
11.11 MERGERS
Except with the prior consent of the Majority Lenders, the Borrower
will not enter into any amalgamation, restructure, substantial
reorganisation, merger, de-merger or consolidation or anything
analogous to the foregoing nor will it acquire any equity, share
capital or obligations of any corporation or other entity and will
procure that no company in the NCLC Group (other than NCL
International or NCL America Holdings) shall do so.
However, the prior consent of the Majority Lenders shall not be
required in respect of any reorganisation or restructure involving
wholly owned (whether directly or indirectly) Subsidiaries of the
Borrower only which does not imperil the security created by any of
the Security Documents or affect the ability of any
57
Obligor duly to perform any of its obligations under any Security
Document to which it may be a party at any time, provided that the
Borrower has first consulted with the Agent with regard to the
proposed consolidation, reorganisation or restructure, provides
evidence satisfactory to the Agent that the Borrower will be in
compliance with the financial undertakings contained in Clause 11.3
after any such reorganisation or restructure SUBJECT TO:
11.11.1 Clause 10.2.20; and
11.11.2 the cash flows from which the Outstanding Indebtedness will
be repaid remaining comparable as to amount (relative to the
amount of the Outstanding Indebtedness) and accessibility
for the Borrower to the cash flows as at the Signing Date,
in the sole discretion of the Lenders.
For the avoidance of doubt, if the Agent is satisfied the Borrower
will be in compliance with the financial undertakings contained in
Clause 11.3 after the acquisition by a member of the NCLC Group of
any shares in any company or corporation, such acquisition shall not
in itself constitute a merger or consolidation with such company or
corporation requiring the consent of the Majority Lenders under this
Clause 11.11.
11.12 MAINTENANCE OF STATUS AND FRANCHISES
The Borrower will do all such things as are necessary to maintain
its corporate existence in good standing and will ensure that it has
the right and is duly qualified to conduct its business as it is
conducted in all applicable jurisdictions and will obtain and
maintain all franchises and rights necessary for the conduct of its
business.
11.13 FINANCIAL RECORDS
The Borrower will keep proper books of record and account, in which
proper and correct entries shall be made of all financial
transactions and the assets, liabilities and business of the
Borrower in accordance with US GAAP.
11.14 SUBORDINATION OF INDEBTEDNESS
The Borrower shall procure that any and all indebtedness (and in
particular with any other Obligor) is at all times fully
subordinated to the Security Documents
58
and the obligations of the Borrower hereunder. Upon the occurrence
of an Event of Default or a Possible Event of Default, the Borrower
shall not make any repayments of principal, payments of interest or
of any other costs, fees, expenses or liabilities arising from or
representing such indebtedness.
11.15 GUARANTEES
Save as contemplated by this Agreement, the Borrower will procure
that none of the owners of mortgaged vessels in the NCLC Fleet will
issue or enter into any guarantee or indemnity or otherwise become
directly or contingently liable for the obligations of any other
person, firm or corporation, otherwise than in the ordinary course
of its business as owner of its vessel.
Subject to the above provision of this Clause, the Borrower will
not, and will procure that no member of the NCLC Group will, issue
or enter into any guarantee or indemnity or otherwise become
directly or contingently liable for the obligations of any other
person, firm or corporation without first notifying the Agent with
full details of the amount(s) and the period(s) of the guarantee(s)
or indemnity(ies), if such is or are in excess of (in aggregate (if
applicable)) the amount of twenty million Dollars (USD20,000,000).
11.16 FURTHER ASSURANCE
The Borrower will, from time to time on being required to do so by
the Agent, do or procure the doing of all such acts and/or execute
or procure the execution of all such documents in a form
satisfactory to the Agent as the Agent may reasonably consider
necessary for giving full effect to any of the Transaction Documents
or securing to the Agent and the Lenders the full benefit of the
rights, powers and remedies conferred upon the Agent or the Lenders
in any such Transaction Document.
11.17 VALUATION OF THE VESSELS
11.17.1 Each of the Vessels shall for the purposes of this Clause
11.17 be valued in Dollars by two (2) independent firms of
shipbrokers or shipvaluers nominated by the Borrower and
approved by the Agent (acting on the instructions of the
Majority Lenders) or failing such nomination and approval,
appointed by the Agent (acting on such instructions) in its
sole
59
discretion (each such valuation to be made without, unless
reasonably required by the Agent, physical inspection and on
the basis of a sale for prompt delivery for cash at arm's
length on normal commercial terms as between a willing buyer
and a willing seller without taking into account the benefit
of any charterparty or other engagement concerning the
Vessel). Such valuations shall be obtained each January and
July and at such other times as the Agent may from time to
time reasonably require PROVIDED HOWEVER that if the
Borrower has requested the drawdown of the Term Loan
Facility or the advance of a Drawing pursuant to Clause 2.3
and, at such time, such valuations are more than ninety (90)
days old, the Borrower shall, upon the Agent's request,
obtain new valuations at that time. The average of the
valuations shall constitute the value of the Vessel for the
purposes of this Clause 11.17.
11.17.2 The Borrower shall procure that forthwith upon the issuance
of any valuation obtained pursuant to this Clause 11.17 a
copy thereof is sent directly to the Agent for review.
11.18 MARGINAL SECURITY
If at any time after the Signing Date the aggregate of the value of
the Vessels as assessed in accordance with the provisions of Clause
11.17 is less than one hundred and twenty five per cent (125%) of
the outstanding amount of the aggregate of the Term Loan Facility,
the Available Commitments and the Contributions to the Revolving
Credit Facility, then the Borrower shall, upon notice from the
Agent, within ten (10) Business Days either:
11.18.1 provide the Agent with additional security acceptable to the
Majority Lenders such that the security value of the Vessels
and any additional security provided to the Agent hereunder
(at valuations reasonably estimated by the Agent from time
to time) is at least one hundred and twenty five per cent
(125%) of the aggregate of the Term Loan Facility, the
Available Commitments and the Contributions to the Revolving
Credit Facility; or
11.18.2 prepay the Term Loan Facility and reduce the Available
Commitments by such amounts pro rata that the value of the
security is at least one hundred
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and twenty five per cent (125%) of the aggregate of the Term
Loan Facility, the Available Commitments and the
Contributions to the Revolving Credit Facility.
11.19 NO DEALINGS WITH MASTER AGREEMENTS
The Borrower shall not assign, novate or encumber or in any other
way transfer any of its rights or obligations under any Master
Agreement, nor enter into any interest rate exchange or hedging
agreement with anyone other than a Lender or its Affiliate.
11.20 FINANCIAL YEAR END
The Borrower shall not change its financial year end.
11.21 MAINTENANCE AND INSURANCE
The Borrower will keep, and will procure that each member of the
NCLC Group keeps, all of its real property and assets properly
maintained and in existence and will comprehensively insure, and
will procure that each member of the NCLC Group comprehensively
insures, for its full reinstatement cost all of its property which
is of an insurable nature in such name as the Agent shall in writing
approve and on such terms, for such amounts and of such types as
would be effected by prudent companies carrying on business similar
to the Borrower or its Subsidiary (as the case may be). In
particular but without limitation, the Borrower shall procure that
each of the Owners maintains and insures its Vessel in accordance
with the provisions of the relevant Mortgage.
12 RIGHTS OF THE AGENT AND THE LENDERS
12.1 NO DEROGATION OF RIGHTS
Any rights conferred on the Agent and the Lenders or any of them by
this Agreement or any other Security Document shall be in addition
to and not in substitution for or in derogation of any other right
which the Agent and the Lenders or any of them might at any time
have to seek from the Borrower or any other person for payment of
sums due from the Borrower or indemnification against liabilities as
a result of the Borrower's default in payment of sums due from it
under this Agreement or any other Security Document.
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12.2 ENFORCEMENT OF REMEDIES
None of the Agent or the Lenders shall be obliged before taking
steps to enforce any rights conferred on it or them by this Clause
or exercising any of the rights, powers and remedies conferred on it
or them hereby or by law:
12.2.1 to take action or obtain judgment in any court against the
Borrower or any other person from whom it or they may seek
payment of any sum due from the Borrower under this
Agreement or any other Security Document;
12.2.2 to make or file any claim in a bankruptcy, winding-up,
liquidation or re-organisation of the Borrower or any other
such person; or
12.2.3 to enforce or seek to enforce any other rights it or they may
have against the Borrower or any other such person.
13 DEFAULT
13.1 EVENTS OF DEFAULT
Each of the events set out below is an Event of Default:
13.1.1 NON-PAYMENT
The Borrower or any other Obligor does not pay on the due
date any amount of principal or interest of a Facility
(provided however that if any such amount is not paid when
due solely by reason of some error or omission on the part
of the bank or banks through whom the relevant funds are
being transmitted no Event of Default shall occur for the
purposes of this Clause 13.1.1 until the expiry of three (3)
Business Days following the date on which such payment is
due), or within three (3) days of the due date any other
amount, payable by it under any Security Document to which
it may at any time be a party, at the place and in the
currency in which it is expressed to be payable.
13.1.2 BREACH OF OTHER OBLIGATIONS
(a) Any Obligor fails to comply with any other material
provision of any Security Document or there is any other
material breach in the
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sole opinion of the Agent of any of the Transaction
Documents and such failure (if in the opinion of the
Agent in its sole discretion it is capable of remedy)
continues unremedied for a period of thirty (30) days
from the date of its occurrence and in any such case as
aforesaid the Agent in its sole discretion considers
that such failure is or could reasonably be expected to
become materially prejudicial to the interests, rights
or position of the Lenders; or
(b) If there is a repudiation or termination of any
Transaction Document or if any of the parties thereto
becomes entitled to terminate or repudiate any of them
and evidences an intention so to do.
13.1.3 MISREPRESENTATION
Any representation warranty or statement made or repeated
in, or in connection with, any Security Document or in any
accounts, certificate, statement or opinion delivered by or
on behalf of any Obligor thereunder or in connection
therewith is materially incorrect when made or would, if
repeated at any time hereafter by reference to the facts
subsisting at such time, no longer be materially correct.
13.1.4 CROSS DEFAULT
(a) Any event of default occurs under any financial contract
or financial document relating to any Financial
Indebtedness of any member of the NCLC Group.
(b) Any such Financial Indebtedness or any sum payable in
respect thereof is not paid when due (after the expiry
of any applicable grace period(s)) whether by
acceleration or otherwise.
(c) Any Encumbrance over any assets of any member of the
NCLC Group becomes enforceable.
(d) Any other Financial Indebtedness of any member of the
NCLC Group is not paid when due or is or becomes capable
of being
63
declared due prematurely by reason of default or any
security for the same becomes enforceable by reason of
default,
PROVIDED THAT:
(i) No Event of Default will arise if the relevant
Financial Indebtedness is not accelerated or, if it is
accelerated but, in aggregate, the Financial
Indebtedness is less than five million Dollars
(USD5,000,000);
(ii) Financial Indebtedness being contested by the Borrower
in good faith will be disregarded PROVIDED first that
full details of the dispute shall be submitted to the
Agent forthwith upon its occurrence and second if the
dispute remains unresolved for a period of one hundred
and fifty (150) days this Clause 13.1.4(ii) shall not
apply to that Financial Indebtedness; and
(iii) If at any time hereafter the Borrower or any other
member of the NCLC Group agrees to the incorporation
of a cross default provision into any financial
contract or financial document relating to any
Financial Indebtedness that is more onerous than this
Clause 13.1.4, then the Borrower shall immediately
notify the Agent and that cross default provision
shall be deemed to apply to this Agreement as if set
out in full herein with effect from the date of such
financial contract or financial document and during
the currency of that financial contract or financial
document.
13.1.5 WINDING-UP
Any order is made or an effective resolution passed or other
action taken for the suspension of payments or dissolution,
termination of existence, liquidation, winding-up or
bankruptcy of any member of the NCLC Group.
13.1.6 MORATORIUM OR ARRANGEMENT WITH CREDITORS
A moratorium in respect of all or any debts of any member of
the NCLC Group or a composition or an arrangement with
creditors of any member
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of the NCLC Group or any similar proceeding or arrangement
by which the assets of any member of the NCLC Group are
submitted to the control of its creditors is applied for,
ordered or declared or any member of the NCLC Group
commences negotiations with any one or more of its creditors
with a view to the general readjustment or rescheduling of
all or a significant part of its Financial Indebtedness.
13.1.7 APPOINTMENT OF LIQUIDATORS ETC.
A liquidator, trustee, administrator, receiver, manager or
similar officer is appointed in respect of any member of the
NCLC Group or in respect of all or any substantial part of
the assets of any member of the NCLC Group and in any such
case such appointment is not withdrawn within thirty (30)
days (the "GRACE PERIOD") unless the Agent considers in its
sole discretion that the interest of the Lenders might
reasonably be expected to be adversely affected in which
event the Grace Period shall not apply.
13.1.8 INSOLVENCY
Any member of the NCLC Group becomes or is declared
insolvent or is unable, or admits in writing its inability,
to pay its debts as they fall due or becomes insolvent
within the terms of any applicable law.
13.1.9 LEGAL PROCESS
Any distress, execution, attachment or other process affects
the whole or any substantial part of the assets of any
member of the NCLC Group and remains undischarged for a
period of twenty one (21) days or any uninsured judgment in
excess of ten million Dollars (USD10,000,000) following
final appeal remains unsatisfied for a period of thirty (30)
days in the case of a judgment made in the United States of
America and otherwise for a period of sixty (60) days
PROVIDED THAT no Event of Default shall be deemed to have
occurred unless the distress, execution, attachment, other
process or judgment adversely affects any Obligor's ability
to meet any of its material obligations under this Agreement
or the other Security Documents or cause to occur any of the
events specified in
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sub-clauses 13.1.5 to 13.1.8 of this Clause (the
determination of which shall be in the Majority Lenders'
sole discretion).
13.1.10 ANALOGOUS EVENTS
Anything analogous to or having a substantially similar
effect to any of the events specified in sub-clauses 13.1.5
to 13.1.9 of this Clause shall occur under the laws of any
applicable jurisdiction.
13.1.11 CESSATION OF BUSINESS
Any member of the NCLC Group ceases to carry on all or a
substantial part of its business.
13.1.12 REVOCATION OF CONSENTS
Any authorisation, approval, consent, licence, exemption,
filing, registration or notarisation or other requirement
necessary to enable any Obligor to comply with any of its
obligations under any of the Transaction Documents is
materially adversely modified, revoked or withheld or does
not remain in full force and effect and within ninety (90)
days of the date of its occurrence such event is not
remedied to the satisfaction of the Agent and the Agent
considers in its sole discretion that such failure is or
might be expected to become materially prejudicial to the
interests, rights or position of the Lenders PROVIDED THAT
the Borrower shall not be entitled to the aforesaid ninety
(90) day period if the modification, revocation or
withholding of the authorisation, approval or consent is due
to an act or omission of any Obligor and the Agent is
satisfied in its sole discretion that the Lenders' interests
might reasonably be expected to be materially adversely
affected.
13.1.13 UNLAWFULNESS
At any time it is unlawful or impossible for any Obligor to
perform any of its obligations under any Security Document
to which it is a party or it is unlawful or impossible for
the Agent or any Lender to exercise any of its rights under
any of the Security Documents PROVIDED THAT no Event of
Default shall be deemed to have occurred (except where the
66
unlawfulness or impossibility adversely affects any
Obligor's payment obligations under this Agreement and the
other Security Documents (the determination of which shall
be in the Agent's sole discretion) in which case the
following provisions of this Clause 13.1.13 shall not apply)
where the unlawfulness or impossibility prevents any Obligor
from performing its obligations (other than its payment
obligations under this Agreement and the other Security
Documents) and is cured within a period of twenty one (21)
days of the occurrence of the event giving rise to the
unlawfulness or impossibility and the relevant Obligor,
within the aforesaid period, performs its obligation(s) and
PROVIDED FURTHER THAT no Event of Default shall be deemed to
have occurred where the Agent and/or any relevant Lender
could, in its sole discretion, mitigate the consequences of
unlawfulness or impossibility in the manner described in
Clause 4.3 and/or Clause 5.9. The costs of mitigation shall
be determined in accordance with Clause 4.3 and/or Clause
5.9.
13.1.14 INSURANCES
An Owner fails to insure its Vessel in the manner specified
in the relevant Mortgage or fails to renew the Insurances at
least ten (10) days prior to the date of expiry thereof and
produce prompt confirmation of such renewal to the Agent.
13.1.15 TOTAL LOSS
If the Vessel shall become a Total Loss and the proceeds of
the Insurances in respect thereof shall not have been
received by the Agent within one hundred and fifty (150)
days after the date of the event giving rise to such Total
Loss.
13.1.16 OWNERSHIP AND CONTROL OF THE BORROWER
If:
(a) at any time when the ordinary share capital of the
Borrower is not publicly listed on an Approved Stock
Exchange or at any time when a dividend is to be paid to
the existing shareholders of the Borrower by way of a
share issue pursuant to a public offering on
67
an Approved Stock Exchange, the Lim Family together or
individually do not or will not, directly or indirectly,
control the Borrower and beneficially own, directly or
indirectly, at least fifty one per cent (51%) of the
issued share capital of, and equity interest in, the
Borrower; or
(b) at any time following the listing of the ordinary share
capital of the Borrower on an Approved Stock Exchange:
(i) any individual or any Third Party:
(A) owns legally and/or beneficially and either
directly or indirectly at least thirty three
per cent (33%) of the ordinary share capital
of the Borrower; or
(B) has the right or the ability to control either
directly or indirectly the affairs of or the
composition of the majority of the board of
directors (or equivalent) of the Borrower,
and, at the same time as any of the events
described in paragraphs (A) or (B) of this Clause
have occurred and are continuing, the Lim Family
together or individually do not, directly or
indirectly, beneficially own, at least fifty one
per cent (51%) of the issued share capital of, and
equity interest in, the Borrower; or
(ii) the Borrower ceases to be a listed company on an
Approved Stock Exchange without the prior written
consent of the Majority Lenders,
(and, for the purpose of this Clause 13.1.16 "CONTROL" of
any company, limited partnership or other legal entity (a
"BODY CORPORATE") by a member of the Lim Family, means that
one (1) or more members of the Lim Family has, directly or
indirectly, the power to direct the management and policies
of such a body corporate, whether through the ownership of
more than fifty per cent (50%) of the issued voting capital
of that body corporate or by contract, trust or other
arrangement).
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13.1.17 DISPOSALS
If the Borrower or any other member of the NCLC Group shall
have concealed, removed, or permitted to be concealed or
removed, any part of its property, with intent to hinder,
delay or defraud its creditors or any of them, or made or
suffered a transfer of any of its property which may be
fraudulent under any bankruptcy, fraudulent conveyance or
similar law; or shall have made any transfer of its property
to or for the benefit of a creditor with the intention of
preferring such creditor over any other creditor.
13.1.18 PREJUDICE TO SECURITY
Anything is done or suffered or omitted to be done by any
Obligor which in the reasonable opinion of the Agent would
or might be expected to imperil the security created by any
of the Security Documents.
13.1.19 MATERIAL ADVERSE EFFECT
Any event or circumstance occurs which the Majority Lenders
believe has had or reasonably believe will have a Material
Adverse Effect.
13.1.20 GOVERNMENTAL INTERVENTION
The authority of any member of the NCLC Group in the conduct
of its business is wholly or substantially curtailed by any
seizure or intervention by or on behalf of any authority and
within ninety (90) days of the date of its occurrence any
such seizure or intervention is not relinquished or
withdrawn and the Agent reasonably considers that the
relevant occurrence is or might be expected to become
materially prejudicial to the interests, rights or position
of the Lenders PROVIDED THAT the Borrower shall not be
entitled to the aforesaid ninety (90) day period if the
seizure or intervention executed by any authority is due to
an act or omission of any member of the NCLC Group and the
Agent is satisfied, in its sole discretion, that the
Lenders' interest might reasonably be expected to be
materially adversely affected.
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13.1.21 MASTER AGREEMENT TERMINATION
A notice is given by a Lender or its Affiliate (as the case
may be) under section 6(a) of the relevant Master Agreement,
or by any person under section 6(b)(iv) of a Master
Agreement, in either case designating an Early Termination
Date for the purpose of the Master Agreement, or a Master
Agreement is for any other reason terminated, cancelled,
suspended, rescinded, revoked or otherwise ceases to remain
in full force and effect.
13.2 ACCELERATION
13.2.1 On the occurrence of an Event of Default or a Possible
Event of Default and at any time thereafter whilst such
event shall be continuing the Agent may if a Drawing has not
yet been drawn down, by notice to the Borrower cancel the
obligations of the Lenders under this Agreement.
13.2.2 On the occurrence of an Event of Default and at any time
thereafter whilst such event shall be continuing, if the
Term Loan Facility and/or a Drawing has been drawn down the
Agent may:
(a) by notice to the Borrower declare the whole or any
part of the Facility due and repayable in
accordance with the terms of such notice whereupon
the same shall become due and repayable accordingly
together with all interest accrued thereon and all
other amounts payable hereunder and under any of
the other Security Documents; and/or
(b) from time to time exercise all or any of its rights
under any of the Security Documents in such order
and in such manner as it shall deem appropriate;
and/or
(c) at its sole discretion terminate or continue with
the Management Agreements and/or the Sub-Agency
Agreement.
13.3 DEFAULT INDEMNITY
The Borrower shall on demand indemnify the Agent and the Lenders, without
prejudice to any of their other rights under this Agreement and the other
Security
70
Documents, against any loss or expense which the Agent or the
Lenders shall certify as sustained or incurred by any of them as a
consequence of:
13.3.1 any default in payment by the Borrower of any sum under this
Agreement or any of the other Security Documents when due,
including, without limitation, any liability incurred by the
Agent and the Lenders by reason of any delay or failure of
the Borrower to pay any such sums;
13.3.2 any break in funding (including without limitation
warehousing and other related costs) due to the occurrence
of any Event of Default or Possible Event of Default;
13.3.3 any prepayment of the Facility or any part thereof being
made at any time for any reason; and/or
13.3.4 the Term Loan Facility or a Drawing not being drawn for any
reason (excluding any default by the Agent or any Lender)
after the relevant Drawdown Notice has been given,
including, in any such case, but not limited to, any loss or expense
sustained or incurred in maintaining or funding a the Term Loan
Facility or Drawing or in liquidating or re-employing deposits from
third parties acquired to effect or maintain the Term Loan Facility
or the Drawing and also any loss or expense (including without
limitation warehousing and other related costs) incurred in
connection with any Master Agreement.
13.4 SET-OFF
Following the occurrence of any Event of Default and for so long as
the same is continuing, the Borrower irrevocably authorises the
Agent and the Lenders to apply any credit balance to which the
Borrower is entitled upon any account of the Borrower with any
branch of any of the Agent and the Lenders in or towards
satisfaction of any sum due to the Agent or any Lender hereunder but
unpaid, and to combine any accounts of the Borrower for this
purpose. If such set-off requires a credit balance in a currency
other than Dollars to be transferred to an account maintained in
connection herewith the transfer shall be effected by crediting to
the account in question the amount of Dollars which the Agent or the
Lender (as the case may be) could obtain by exchanging such currency
for Dollars at the rate
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of exchange at which its Lending Branch would, at the opening of
business on the date on which the combination is effected, have sold
the currency of that credit balance for Dollars for immediate
delivery.
13.5 MASTER AGREEMENT RIGHTS
The rights conferred on the Agent and the Lenders by Clause 13.4
shall be in addition to, and without prejudice to or limitation of,
the rights of netting and set off conferred on the Lenders and/or
their Affiliates by the Master Agreements. The Borrower acknowledges
that none of the Lenders or its Affiliate (as the case may be) shall
be under an obligation to make any payment to the Borrower under a
Master Agreement if, at the time that payment becomes due, an Event
of Default or a Possible Event of Default shall have occurred, or an
Event of Default or Termination Event (as those terms are
respectively defined in the Master Agreements) shall have occurred.
14 APPLICATION OF FUNDS
14.1 TOTAL LOSS PROCEEDS/PROCEEDS OF SALE/EVENT OF DEFAULT MONIES
In the event of a Vessel becoming a Total Loss or if a Vessel is
sold or if an Event of Default has occurred then the Relevant
Percentage of all Total Loss proceeds or proceeds of sale of the
Vessel or any monies received by the Agent or any Lender under or
pursuant to the Security Documents shall be held by the Agent and
applied in the following manner and order:
FIRSTLY to the payment of all fees, expenses and charges
(including brokers' commissions), the expenses of any
sale, the expenses of retaining any attorney,
solicitors' fees, court costs and any other expenses or
advances made or incurred by the Agent or any Lender in
the protection of the Agent's and the Lender's rights or
the pursuance of its or their remedies hereunder and
under the other Security Documents or to any payments
whether voluntary or not which the Agent considers
advisable to protect its or their security and to
provide adequate indemnity against liens claiming
priority over or equality with the lien of all Security
Documents or any other Encumbrances;
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SECONDLY in or towards payment in such order as the Lenders may
require of any accrued (but unpaid) fees and interest
thereon to which the Lead Arrangers, the Co-Arrangers,
the Lenders and/or the Agent are entitled hereunder
and/or under the other Security Documents (other than
the Master Agreements) in connection with the Facility;
THIRDLY in or towards satisfaction of all interest accrued on
the Term Loan Facility and the Revolving Credit Facility
pro rata;
FOURTHLY in retention by the Agent in its discretion in a
suspense or impersonal interest bearing security
realised account of such sum as it considers appropriate
by way of security for the Outstanding Indebtedness
(other than the Master Agreement Liabilities) or for any
actual or contingent liability of the Lead Arrangers,
the Co-Arrangers, the Agent or the Lenders or any of
them in connection with the transactions herein
contemplated;
FIFTHLY in or towards payment of the Term Loan Facility and the
Revolving Credit Facility pro rata (whether or not then
due and payable);
SIXTHLY in or towards satisfaction of any other amounts due from
the Borrower to the Lead Arrangers, the Co-Arrangers,
the Agent or the Lenders under the Security Documents
(other than the Master Agreement Liabilities) using in
the discretion of the Agent the same order of
application as FIRSTLY to FIFTHLY;
SEVENTHLY in retention of such other sum or sums as the Agent may
require as security for any further monies which may
reasonably be expected to become due and payable to the
Lead Arrangers, the Co-Arrangers, the Agent and/or the
Lenders under this Agreement or any of the other
Security Documents and which the assigned Earnings may
be insufficient to satisfy;
EIGHTHLY in or towards satisfaction of the Master Agreement
Liabilities in the same order in which the Transactions
were entered into by the
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Borrower with the Lenders and/or their Affiliates (as
the case may be); and
NINTHLY the balance, if any, in payment to the Borrower or
whomsoever shall then be entitled thereto.
In the event of the proceeds being insufficient to pay the
amounts referred to above the Agent shall be entitled to collect
the balance from the Borrower.
14.2 GENERAL FUNDS
Any other monies received by or in the possession of the Agent or
any Lender under or pursuant to the Security Documents which are
expressed hereunder and/or under the Security Documents to be
distributed in accordance with the provisions of this Clause or
where no express provisions are made for disposal shall be applied
in the discretion of the Agent as follows:
FIRSTLY in or towards payment of all fees, costs and expenses
incurred by the Agent or any Lender in connection with
the Facility and which are for the time being unpaid;
SECONDLY in or towards payment in such order as the Lenders may
require of any accrued (but unpaid) fees and interest
thereon to which the Lead Arrangers, the Co-Arrangers,
the Lenders and/or the Agent are entitled hereunder
and/or under the other Security Documents (other than
the Master Agreements) in connection with the Facility;
THIRDLY in or towards satisfaction of all interest accrued on
the Term Loan Facility and the Revolving Credit Facility
pro rata;
FOURTHLY in retention by the Agent in its discretion in a
suspense or impersonal interest bearing security
realised account of such sum as it considers appropriate
by way of security for the Outstanding Indebtedness
(other than the Master Agreement Liabilities) or for any
actual or contingent liability of the Lead Arrangers,
the Co-Arrangers, the Agent or the Lenders or any of
them in connection with the transactions herein
contemplated;
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FIFTHLY in or towards payment of the Term Loan Facility and the
Revolving Credit Facility pro rata;
SIXTHLY in retention of such other sum or sums as the Agent may
require as security for any further monies which may
reasonably be expected to become due and payable to the
Lead Arrangers, the Co-Arrangers, the Agent and/or the
Lenders under this Agreement or any of the other
Security Documents (other than the Master Agreement
Liabilities) and which the assigned Earnings may be
insufficient to satisfy;
SEVENTHLY in or towards satisfaction of the Master Agreement
Liabilities in the same order in which the Transactions
were entered into by the Borrower with the Lenders
and/or their Affiliates (as the case may be); and
EIGHTHLY the balance (if any) shall be released to the Borrower
or to its order or whomsoever else may be entitled
thereto.
14.3 APPLICATION OF PROCEEDS OF INSURANCES
Proceeds of the Insurances for partial losses shall be applied in
accordance with the relevant Insurance Assignment and/or the loss
payable clause endorsed on the Insurances in the form approved by
the Agent and in the case of a Total Loss of a Vessel in accordance
with Clause 4.5, Clause 5.3 and Clause 14.1.
14.4 SUSPENSE ACCOUNT
Any monies received or recovered by the Agent or any Lender under or
in connection with the Security Documents and credited to any
suspense or impersonal interest bearing security realised account in
accordance with FOURTHLY of Clause 14.1 or Clause 14.2 may be held
in such account for so long as the Agent thinks fit pending
application at the Agent's discretion in accordance with FOURTHLY of
Clause 14.1 or Clause 14.2 (as the case may be).
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15 THE MASTER AGREEMENT
15.1 APPLICABILITY
The following provisions of this Clause will apply if a Lender or
its Affiliate (as the case may be) and the Borrower have entered, or
enter during the Security Period, into one or more Transactions.
15.2 ADDITIONAL TERMINATION EVENT
If the Facility is for any reason not advanced to the Borrower
before the expiry of the Availability Periods, and a Lender or its
Affiliate (as the case may be) and the Borrower have entered into
any Transactions before that expiry, an Additional Termination Event
(with the relevant Lender or its Affiliate (as the case may be) as
the Affected Party) shall be deemed to have occurred under the
relevant Master Agreement on the expiry of the Availability Periods.
15.3 ADJUSTMENT OF NOTIONAL AMOUNTS
If:
15.3.1 the amount of the Facility actually advanced by the Lenders
to the Borrower is less than the Notional Amount (or the
aggregate Notional Amounts) of the Hedging Transactions
entered into on or before the expiry of the Availability
Periods, or
15.3.2 the Borrower prepays part of the Facility under any provision
of this Agreement, and the amount of the Facility remaining
outstanding after that prepayment is less than the Notional
Amount (or the aggregate Notional Amounts) of the Hedging
Transactions,
then in effect the Borrower's obligations under those Hedging
Transactions shall (unless otherwise agreed by the relevant Lenders
and/or their Affiliates (as the case may be)) be calculated (so far
as the Agent considers it practicable to do so) by reference to a
Notional Amount (or aggregate Notional Amounts) equal to the amount
of the Facility actually advanced or remaining outstanding after
that prepayment, as reduced on each Repayment Date by the amount of
the Instalment then due or on each Maturity Date by the amount of
the Drawing then due, and adjusted if necessary in accordance with
Clause 3.
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15.4 AUTHORITY
In order to give effect to Clause 15.3, or in the event of voluntary
or mandatory prepayment or cancellation by the Borrower of the whole
of the Facility, the Borrower irrevocably authorises the Lenders for
themselves or for and on behalf of their Affiliates (as the case may
be) to amend, restructure, unwind, cancel, net out, terminate,
liquidate, transfer or assign any of the rights or obligations under
any Hedging Transactions, and/or to enter into any other interest
rate exchange and/or hedging transaction or commitment with any
other counterparty.
15.5 TERMINATION OF TRANSACTIONS
If the exercise of a Lender's rights under Clause 15.4 results in
the termination of any Transaction, that Transaction shall, for the
purposes of the relevant Master Agreement (including, without
limitation, section 6(e)(i) of the Master Agreement) be treated as a
Terminated Transaction resulting from an Event of Default by the
Borrower.
15.6 INDEMNITY
The Borrower will indemnify each Lender through the Agent from time
to time on demand in respect of all liabilities, losses, costs or
expenses suffered, incurred or sustained by a Lender arising in any
way in relation to the exercise by a Lender of its rights under this
Clause, or arising in any way from any other termination,
cancellation, unwinding or restructuring of any Transaction.
15.7 NOTIFICATION OF TRANSACTIONS
If the Borrower enters into a Transaction with a Lender or its
Affiliate (as the case may be) under the relevant Master Agreement
the Lender shall notify the Agent within one (1) Business Day of the
date of the Transaction and the Agent shall promptly inform the
other Lenders thereof.
16 FEES
16.1 COMMITMENT FEE
The Borrower shall pay to the Agent for distribution to the Lenders
quarterly in arrears forty per cent (40%) of the Applicable Margin
on the relevant payment
77
date on the daily undrawn, uncancelled amount of the Term Loan
Facility and the Revolving Credit Facility during the relevant
Commitment Period.
16.2 OTHER FEES
The Borrower will pay to Nordea Bank Norge ASA or the Agent on
behalf of itself, the Lead Arrangers, the Co-Arrangers and/or the
Lenders, such fees as are set out in a separate fee letter dated 25
June 2004.
17 EXPENSES
17.1 INITIAL EXPENSES
The Borrower shall reimburse the Agent on demand on a full indemnity
basis for the charges and expenses (together with value added tax or
any similar tax thereon and including without limitation the fees
and expenses of legal, insurance and other advisers) incurred by the
Agent in respect of the syndication, negotiation, preparation,
printing, execution and registration of this Agreement and the other
Transaction Documents and any other documents required in connection
with the implementation of this Agreement.
17.2 ENFORCEMENT EXPENSES
The Borrower shall reimburse the Agent and the Lenders on demand on
a full indemnity basis for all charges and expenses (including value
added tax or any similar tax thereon and including the fees and
expenses of legal advisers) incurred by the Agent and each of the
Lenders in connection with the enforcement of, or the preservation
of any rights under, this Agreement and the other Security
Documents.
17.3 STAMP DUTIES
The Borrower shall pay or indemnify the Agent and each of the
Lenders on demand against any and all stamp, registration and
similar Taxes which may be payable in any jurisdiction in connection
with the entry into, performance and enforcement of this Agreement
or any of the other Security Documents.
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18 WAIVERS, REMEDIES CUMULATIVE
18.1 NO WAIVER
No failure to exercise and no delay in exercising on the part of the
Agent or any of the Lenders any right or remedy under any of the
Security Documents shall operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy preclude any other
or further exercise thereof, or the exercise of any other right or
remedy. No waiver by the Agent or any of the Lenders shall be
effective unless it is in writing.
18.2 REMEDIES CUMULATIVE
The rights and remedies of the Agent, and the Lenders provided
herein are cumulative and not exclusive of any rights or remedies
provided by law.
18.3 SEVERABILITY
If any provision of this Agreement is prohibited or unenforceable in
any jurisdiction, such prohibition or unenforceability shall not
invalidate the remaining provisions hereof or affect the validity or
enforceability of such provision in any other jurisdiction.
18.4 TIME OF ESSENCE
Time is of the essence in respect of all of the obligations of the
Borrower under the Security Documents provided however that none of
the Agent or any of the Lenders shall be entitled to terminate or
treat this Agreement or any of the other Security Documents as
having been repudiated otherwise than in circumstances which
constitute an Event of Default.
19 COUNTERPARTS
This Agreement may be executed in any number of counterparts and all such
counterparts taken together shall be deemed to constitute one and the same
agreement.
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20 CHANGES TO THE LENDERS
20.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Subject to this Clause 20, a Lender (the "EXISTING LENDER") may:
20.1.1 assign any of its rights under the Security Documents; or
20.1.2 transfer by novation any of its rights and obligations under
the Security Documents,
to another bank or financial institution or to a trust, fund or
other entity which is regularly engaged in or established for the
purpose of making, purchasing or investing in loans, securities or
other financial assets (the "NEW LENDER") provided that any such
assignment or transfer shall be in respect of an amount of its
Contribution of not less than five million Dollars (USD5,000,000).
20.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
20.2.1 The consent of the Borrower and the Agent is required for an
assignment or transfer by a Lender, unless the assignment or
transfer is to another Lender or an Affiliate of a Lender or
an Event of Default or a Possible Event of Default has
occurred and is continuing.
20.2.2 The consent of the Borrower to an assignment or transfer must
not be unreasonably withheld or delayed. The Borrower will be
deemed to have given its consent five (5) Business Days after
the Lender has requested it unless consent is expressly
refused by the Borrower within that time.
20.2.3 The consent of the Borrower to an assignment or transfer must
not be withheld solely because the assignment or transfer may
result in an increase to the Mandatory Cost.
20.2.4 An assignment will only be effective on:
(a) receipt by the Agent of written confirmation from the
New Lender (in form and substance satisfactory to the
Agent) that the New Lender will assume the same
obligations to the Agent and the
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other Lenders as it would have been under if it was an
Original Lender; and
(b) performance by the Agent of all "know your customer" or
other checks relating to any person that it is required
to carry out in relation to such assignment to a New
Lender, the completion of which the Agent shall promptly
notify to the Existing Lender and the New Lender.
20.2.5 A transfer will only be effective if the procedure set out in
Clause 20.5 is complied with.
20.2.6 If:
(a) a Lender assigns or transfers any of its rights or
obligations under the Security Documents or changes its
Lending Branch; and
(b) as a result of circumstances existing at the date the
assignment, transfer or change occurs, a Borrower would
be obliged to make a payment to the New Lender or Lender
acting through its new Lending Branch under Clause 8,
then the New Lender or Lender acting through its new Lending
Branch is only entitled to receive payment under those Clauses
to the same extent as the Existing Lender or Lender acting
through its previous Lending Branch would have been if the
assignment, transfer or change had not occurred.
20.2.7 Any Existing Lender that assigns any of its rights shall
retain its voting right as a Lender.
20.3 ASSIGNMENT OR TRANSFER FEE
The Existing Lender shall, on the date upon which an assignment or
transfer takes effect, pay to the Agent (for its own account) a fee
of three thousand Dollars (USD3,000).
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20.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
20.4.1 Unless expressly agreed to the contrary, an Existing Lender
makes no representation or warranty and assumes no
responsibility to a New Lender for:
(a) the legality, validity, effectiveness, adequacy or
enforceability of the Security Documents or any other
documents;
(b) the financial condition of the Borrower;
(c) the performance and observance by any Obligor of its
obligations under the Security Documents or any other
documents; or
(d) the accuracy of any statements (whether written or oral)
made in or in connection with any Security Document or
any other document,
and any representations or warranties implied by law are
excluded.
20.4.2 Each New Lender confirms to the Existing Lender, the Agent
and the other Lenders that it:
(a) has made (and shall continue to make) its own
independent investigation and assessment of the
financial condition and affairs of each Obligor and its
related entities in connection with its participation in
this Agreement and has not relied exclusively on any
information provided to it by the Existing Lender in
connection with any Security Document; and
(b) will continue to make its own independent appraisal of
the creditworthiness of each Obligor and its related
entities whilst any amount is or may be outstanding
under the Security Documents or any Commitment is in
force.
20.4.3 Nothing in any Security Document obliges an Existing Lender
to:
(a) accept a re-transfer from a New Lender of any of the
rights and obligations assigned or transferred under
this Clause 20; or
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(b) support any losses directly or indirectly incurred
by the New Lender by reason of the non-performance
by any Obligor of its obligations under the
Security Documents or otherwise.
20.5 PROCEDURE FOR TRANSFER
20.5.1 Subject to the conditions set out in Clause 20.2 a transfer
is effected in accordance with Clause 20.5.3 when the Agent
executes an otherwise duly completed Transfer Certificate
delivered to it by the Existing Lender and the New Lender.
The Agent shall, subject to Clause 20.5.2, as soon as
reasonably practicable after receipt by it of a duly
completed Transfer Certificate appearing on its face to
comply with the terms of this Agreement and delivered in
accordance with the terms of this Agreement, execute that
Transfer Certificate.
20.5.2 The Agent shall only be obliged to execute a Transfer
Certificate delivered to it by the Existing Lender and the
New Lender once it is satisfied it has complied with all
necessary "know your customer" or other similar checks under
all applicable laws and regulations in relation to the
transfer to such New Lender.
20.5.3 On the Transfer Date:
(a) to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer by novation its rights
and obligations under the Security Documents each of the
Borrower and the Existing Lender shall be released from
further obligations towards one another under the
Security Documents and their respective rights against
one another shall be cancelled (being the "DISCHARGED
RIGHTS AND OBLIGATIONS");
(b) each of the Borrower and the New Lender shall assume
obligations towards one another and/or acquire rights
against one another which differ from the Discharged
Rights and Obligations only insofar as the Borrower and
the New Lender have assumed and/or acquired the same in
place of the Borrower and the Existing Lender;
83
(c) the Agent, the New Lender and other Lenders shall
acquire the same rights and assume the same obligations
between themselves as they would have acquired and
assumed had the New Lender been an Original Lender with
the rights and/or obligations acquired or assumed by it
as a result of the transfer and to that extent the Agent
and the Existing Lender shall each be released from
further obligations to each other under this Agreement;
and
(d) the New Lender shall become a party as a "LENDER".
20.6 COPY OF TRANSFER CERTIFICATE TO BORROWER
The Agent shall, as soon as reasonably practicable after it has
executed a Transfer Certificate, send to the Borrower a copy of that
Transfer Certificate.
20.7 DISCLOSURE OF INFORMATION
Any Lender may disclose to any of its Affiliates and any other
person:
20.7.1 to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
20.7.2 with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation to,
or any other transaction under which payments are to be made
by reference to, this Agreement or the Borrower; or
20.7.3 to whom, and to the extent that, information is required to
be disclosed by any applicable law or regulation,
any information about any Obligor and the Transaction Documents as
that Lender shall consider appropriate if, in relation to Clauses
20.7.1 and 20.7.2, the person to whom the information is to be given
has entered into a Confidentiality Undertaking.
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20.8 BORROWER'S CO-OPERATION
The Borrower shall co-operate fully with the Lender in relation to
any assignment or transfer proposed by the Lender and shall execute,
or procure the execution of, any documents which the Lender may
require.
21 CHANGES TO THE BORROWER
The Borrower may not assign any of its rights or transfer any of its
rights or obligations under the Security Documents.
22 REFERENCE BANKS AND AGENT
22.1 REFERENCE BANKS
If:
22.1.1 the whole of the Contribution (if any) of any Reference Bank
is prepaid;
22.1.2 the Commitment of any Reference Bank is cancelled or reduced
to zero in accordance with Clause 5.9 or any other relevant
provision hereof;
22.1.3 a Reference Bank transfers the whole of its rights and
obligations (if any) as a Lender under this Agreement; or
22.1.4 where applicable, any Reference Bank ceases to provide
quotations to the Agent for the purposes of determining
LIBOR,
the Agent may, acting on the instructions of the Majority Lenders,
terminate the appointment of such Reference Bank and appoint another
Lender to replace such Reference Bank.
22.2 DECISION MAKING
22.2.1 Save as expressly provided in Clause 22.2.2 or as otherwise
expressly provided herein, any proposed course of action in
connection with any matter requiring the consent of the
Lenders under or in connection howsoever with this Agreement
shall only be taken with the consent of all the Lenders
including, but without limitation to the generality of the
foregoing:
85
(a) the release of the Borrower from any of its obligations
hereunder;
(b) the amendment of any of the provisions of this
Agreement;
(c) any time or other indulgence to be granted to the
Borrower in respect of its obligations under this
Agreement.
22.2.2 Proposals in connection with the following matters shall, in
the absence of agreement thereon by all of the Lenders or as
otherwise provided in this Agreement, be determined by the
Majority Lenders:
(a) the making of any declaration by the Agent under Clause
13.2;
(b) the institution of any legal proceedings for the
enforcement of any rights or powers whatsoever pursuant
to the terms of this Agreement;
(c) any course of action whatsoever from time to time (other
than the making of a demand for payment hereunder)
whether of a legal or commercial nature or otherwise
howsoever for the purpose of achieving a full or partial
recovery of any principal, interest or other amount due
and payable by the Borrower hereunder or otherwise in
connection therewith following the making of a
declaration by the Agent under Clause 13.2;
(d) any other matter in respect of which this Agreement
expressly provides that the consent of the Majority
Lenders shall be required.
22.2.3 Any determination of the Lenders shall be ascertained by the
Agent either:
(a) by means of a telefax sent by the Agent to each of the
Lenders in identical terms on the proposal or matter in
issue; or
(b) by means of the vote of representatives of each Lender
at a meeting convened by the Agent and held for the
purpose of discussing (inter alia) such proposal or
matter in issue.
Furthermore, it is hereby agreed by the Lenders that:
86
(i) where a decision of the Lenders is sought by the Agent
by means of a telefax sent in accordance with paragraph
(a) above and provided that the Agent verifies forthwith
by telephone with each relevant Lender that it has
received such telefax in good order, then the Agent may
in its telefax:
(1) recommend a proposed course of action to be taken
by the Lenders; and
(2) specify a time limit (of not less than three (3)
Business Days) within which the Lenders are
required to respond to the Agent's recommendation
so that, if any Lender fails to notify the Agent within
such time limit of its response to the recommendation,
such Lender shall be deemed to have accepted and
approved the course of action proposed by the Agent; and
(ii) where the approval of the Majority Lenders is required
in respect of any matter, the approval shall be deemed
to have been given as soon as the Agent receives the
requisite number of votes in favour of the proposal so
that the Agent may act on the basis of such votes
without having to wait for the response of (or to give
any notification to) any other Lender who has yet to
reply to the Agent.
22.3 THE AGENT
22.3.1 Each of the Lenders hereby appoints the Agent to act as its
agent under this Agreement and the Security Documents with
such rights, powers and discretions as are expressly
delegated to the Agent hereunder and thereunder.
22.3.2 The Agent shall:
(a) promptly inform the Lenders of the contents of any
notice or request received by it from the Borrower under
this Agreement (whether such notice or request is
addressed to the Agent alone or
87
the Agent on behalf of the Lenders) and of any
information delivered to it pursuant to Clause 11.2 and
of any other matters which the Agent considers material;
(b) promptly deliver to the Lenders copies of any accounts
and certificates delivered to it pursuant to Clause 11.2
and, as soon as reasonably practicable, copies of the
documents delivered in satisfaction of the requirements
of Schedule 3;
(c) promptly inform the Lenders in reasonable detail of any
exercise by it of any of the rights, powers and/or
discretions vested in it hereunder (but without the
Agent being under any obligation to give prior notice to
the Lenders of any such exercise);
(d) promptly notify the Lenders of the occurrence of any
Event of Default or any other default by the Borrower in
the due performance of or compliance with its material
obligations under this Agreement of which the Agent has
actual knowledge or actual notice and the occurrence of
which the Agent has verified;
(e) if directed by the Majority Lenders, exercise (or
refrain from exercising) any right, power or discretion
vested in it hereunder in accordance with the directions
(subject to Clause 22.2.1) of the Majority Lenders
provided, however, that it may refrain from acting in
accordance with any such directions until it has
received such security as it may require (whether by way
of payment in advance or otherwise) for all costs,
claims, expenses (including legal fees) and liabilities
which it will or may expend or incur in complying with
such directions and for this purpose the Agent shall
make a demand for such security addressed to all the
Lenders;
(f) receive from the Borrower all payments of principal,
interest and other moneys expressed to be payable to the
Agent hereunder on behalf of all or any of the Lenders
and shall promptly distribute the same amongst the
Lenders and itself in accordance with the
88
terms of this Agreement pending which the Agent shall
hold any and all such moneys on trust for the Lenders
and itself.
22.3.3 The relationship between the Agent on the one part and each
Lender on the other is that of agent and principal and,
except in relation to any moneys referred to in Clause
22.3.2(d) held by the Agent pending distribution hereunder,
the Agent shall not have a fiduciary relationship with or be,
or be deemed to be, a trustee of or for any such party.
22.3.4 In addition to the powers expressly given to the Agent by
this Agreement:
(a) the Lenders may give the Agent (generally or in any
particular case) any powers which the Lenders consider
appropriate; and
(b) the Agent has power to take any other action which it
considers to be reasonably incidental or conducive to
the performance of its functions under this Agreement or
otherwise appropriate in the context of those functions,
including the exercise of any powers given to it by the
Lenders.
22.3.5 The rights, powers and discretions vested in the Agent by
this Agreement shall only be exercised by the Agent in
accordance with the instructions of the Majority Lenders or
(if so required in accordance with the provisions of Clause
22.2.1) the Lenders provided however that the Agent shall be
entitled (but not bound) to exercise or refrain from
exercising any such right, power or discretion without the
directions of the Majority Lenders or the Lenders (as the
case may be) if the Agent believes that the immediate
exercise of such right, power or discretion is necessary or
desirable to protect the interests of the Lenders under or in
respect of this Agreement.
Where any right, power or discretion is vested in the Agent
under this Agreement but is expressed as being exercisable in
accordance with the directions of the Lenders or the Majority
Lenders, such right, power or discretion shall not be
exercised by the Agent without the lawful directions of the
Lenders or the Majority Lenders (as the case may be).
89
22.3.6 Notwithstanding anything to the contrary expressed or implied
herein, the Agent shall not:
(a) be bound to enquire as to the occurrence or otherwise of
any Event of Default or as to the performance by the
Borrower of its obligations under this Agreement;
(b) be bound to disclose to any other person any information
relating to the Borrower if such disclosure would or
might in its opinion constitute a breach of any law or
regulation or be otherwise actionable at the suit of any
person;
(c) have any responsibility to the Lenders or each other
for:
(i) the financial position, creditworthiness, affairs
or prospects of the Borrower;
(ii) the performance or non-performance howsoever by
the Borrower of any of its obligations hereunder;
(iii) the due execution, effectiveness, genuineness,
validity or enforceability of this Agreement or
any document relating hereto or any filing or
recording thereof or the taking of any other
action whatsoever and howsoever in connection
therewith or the collectability of any sum due
hereunder;
(iv) any computations and/or information supplied to
the Lenders by the Agent in reliance upon which
the Lenders have entered into this Agreement;
(d) be under any liability whatsoever for any consequence of
relying on:
(i) any written communication or document believed by
it to be genuine or correct and to have been
communicated or signed by the person by whom it is
purported to have been communicated or signed; or
90
(ii) the advice or opinions of any professional
advisers selected by it;
(e) be under any duty to account to any Lender for any sum
received by it for its own account or the profit element
of any such sum;
(f) be under any obligation other than those for which
express provision is made herein.
22.3.7 The Agent may:
(a) carry out its duties hereunder through such officers,
directors, employees, consultants or independent agents
as it may in its unfettered discretion think fit;
(b) assume that no Event of Default has occurred and that
the Borrower is not in breach of its obligations under
this Agreement unless the Agent has actual knowledge or
actual notice to the contrary;
(c) engage and pay for the advice or services of any
internal or external lawyers, accountants, surveyors or
other experts whose advice or services may to it seem
necessary, expedient or desirable and rely upon any
advice so obtained;
(d) rely as to any matters of fact which might reasonably be
expected to be within the knowledge of the Borrower upon
a certificate signed by or on behalf of the Borrower;
(e) rely upon any communication or document believed by it
to be genuine.
22.3.8 It is understood that each of the Lenders has itself been,
and will continue to be, solely responsible for making its
own independent appraisal of and investigations into the
financial condition, creditworthiness, condition, affairs,
status and nature of the Borrower and, accordingly, each of
the Lenders warrants to the Agent that it has not relied and
will not rely on the Agent:
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(a) to check or enquire on its behalf into the adequacy,
accuracy or completeness of any information provided by
the Borrower in connection with this Agreement; or
(b) to assess or keep under review on its behalf the
financial condition, creditworthiness, condition,
affairs, status or nature of the Borrower.
22.3.9 Subject to the terms of this Agreement, this Agreement shall
be serviced, supervised and administered by the Agent in the
ordinary course of its business and in accordance with its
usual practices. In performing its duties and functions
hereunder, the Agent shall exercise the same care as it
normally exercises in making and administering loans for its
own account, but assumes no further responsibility in
respect of such performance.
22.3.10 The Agent shall not be under any liability as a result of
taking or omitting to take any action in relation to this
Agreement save in the case of gross negligence or wilful
misconduct and the Lenders will not assert or seek to assert
against any director, officer or employee of the Agent any
claim they might have against any of them in respect of the
matters referred to in this Clause 22.3.10.
22.3.11 Neither the Agent (nor any officer thereof) shall be
precluded by reason of so acting from underwriting,
guaranteeing the subscription of or subscribing for or
otherwise acquiring, holding or dealing with any debentures,
shares or securities whatsoever of the Borrower or from
entering into any contract or financial or other transaction
with or from engaging in any banking or other business with
the Borrower and shall not be liable to account for any
profit made or payment received by it thereby or in
connection therewith.
22.4 RETIREMENT AND REPLACEMENT OF THE AGENT
22.4.1 The Agent may retire at any time without assigning any
reason by giving to the Borrower and the Lenders not less
than thirty (30) days notice of its intention to do so.
Unless the Agent in its notice of retirement nominates
92
any of its associated companies to be its successor, the
successor Agent may be appointed by the Majority Lenders
(with the prior written consent of the Borrower, such consent
not to be unreasonably withheld or delayed) during such
thirty (30) day period provided that, should they fail to do
so, the Agent may then appoint as its successor a reputable
and experienced bank with an office in London.
22.4.2 If any Lender is dissatisfied with the Agent and wants it to
be replaced, such Lender shall consult with the other
relevant Lenders and the Borrower for a period of up to
thirty (30) days to decide whether the Agent should be
replaced and, if so, by whom (such replacement being one of
the relevant Lenders or an associated company thereof). If at
the end of such period the relevant Lenders unanimously agree
that the Agent should be replaced by a particular Lender or
one of its associated companies, and if the Borrower consents
in writing to the identity of the proposed replacement (such
consent (a) not to be unreasonably withheld and (b) not to be
required if an Event of Default has occurred and is
continuing), then notice shall be given by the relevant
Lenders to the Agent specifying the date, being not fewer
than five (5) Business Days after the date of such notice, on
which the appointment of the successor Agent is, subject to
Clause 22.4.4, to take effect.
22.4.3 For the purposes of this Clause 22.4:
(a) an "ASSOCIATED COMPANY" of the Agent and/or any Lender
shall mean any company which is a holding company of the
Agent and/or such Lender or a wholly-owned subsidiary of
it or its parent company; and
(b) "RELEVANT LENDERS" means all of the Lenders other than
that Lender which acts as Agent or whose associated
company acts in such capacity.
22.4.4 Any appointment of a successor Agent under Clause 22.4.1 or
22.4.2 shall take effect upon:
93
(a) the successor confirming in writing its agreement to be
bound by the provisions of this Agreement; and
(b) notice thereof by the Agent and its successor (which
notice, shall specify the bank in New York to which
payments to the new Agent shall be made thereafter)
being given to each of the other parties to this
Agreement.
22.4.5 If a successor to the Agent is appointed under the provisions
of this Clause 22.4:
(a) the outgoing Agent shall be discharged from any further
obligation under this Agreement;
(b) its successor and each of the other parties hereto shall
have the same rights and obligations amongst themselves
as they would have had if such successor had been a
party hereto in place of the outgoing Agent;
(c) Clause 22 and the other provisions of this Agreement
shall remain in effect for the benefit and protection of
the outgoing Agent in relation to any claim or loss
which may be brought against or incurred by it in
connection with or as a result of any act, omission,
breach, neglect or other occurrence or matter relating
to or arising out of this Agreement which took place
before its resignation.
23 NOTICES
23.1 MODE OF COMMUNICATION
Except as otherwise provided herein, each notice, request, demand or
other communication or document to be given or made hereunder shall
be given in writing but unless otherwise stated, may be made by
telefax.
23.2 ADDRESS
Any notice, demand or other communication (unless made by telefax)
to be made or delivered by the Agent to the Borrower pursuant to
this Agreement shall
94
(unless the Borrower has by fifteen (15) days' written notice to the
Agent specified another address) be made or delivered to the
Borrower at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America (marked for the attention of ▇▇ ▇▇▇▇▇▇
Cooler and the Legal Department (but one (1) copy shall suffice)).
Any notice, demand or other communication to be made or delivered by
the Borrower to the Agent pursuant to this Agreement shall (unless
the Agent has by fifteen (15) days' written notice to the Borrower
specified another address) be made or delivered to the Agent at its
Lending Branch, the details of which are set out in Schedule 1.
23.3 TELEFAX COMMUNICATION
Any notice, demand or other communication to be made or delivered
pursuant to this Agreement may be sent by telefax to the relevant
telephone numbers (which at the date hereof in respect of the
Borrower is ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ (marked for the attention of ▇▇ ▇▇▇▇▇▇
Cooler) and ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ (marked for the attention of the Legal
Department) and in the case of the Agent or any Original Lender is
as recorded in Schedule 1) specified by it from time to time for the
purpose and shall be deemed to have been received when transmission
of such telefax communication has been completed. Each such telefax
communication, if made to the Agent or any Lender by the Borrower,
shall be signed by the person or persons authorised in writing by
the Borrower and whose signature appears on the list of specimen
signatures contained in the secretary's certificate required to be
delivered by paragraph 2 of Schedule 3 and shall be expressed to be
for the attention of the department or officer whose name has been
notified for the time being for that purpose by the Agent or any
Lender to the Borrower.
23.4 ELECTRONIC MAIL
Any notice, demand or other communication other than a Drawdown
Notice or a Renewal Notice to be made or delivered pursuant to this
Agreement may be made by electronic mail or other electronic means,
if the Agent, the Borrower and/or the Lender:
23.4.1 agree that, unless and until notified to the contrary, this
is to be an accepted form of communication; and
95
23.4.2 notify each other in writing of their electronic mail address
and/or any other information required to enable the sending
and receipt of information by that means; and
23.4.3 notify each other of any change to their electronic mail
address or any other such information supplied by them.
Any Original Lender which sets out an email address beneath its name
in Schedule 1 is deemed to agree to receiving notices, demands or
other communications from the Agent by electronic mail.
Any electronic communication made:
(a) by the Agent to the Borrower or a Lender will be effective
when it is sent by the Agent unless the Agent receives a
message indicating failed delivery and, if upon the sender's
express request, a confirmation of receipt is requested, such
confirmation has been sent; and
(b) by the Borrower or a Lender to the Agent will be effective
only when actually received by the Agent and then only if it
is addressed in such a manner as the Agent shall specify to
that party for this purpose.
The Agent shall notify the Borrower and the Lenders and the Borrower
or a Lender shall notify the Agent in each case promptly upon
becoming aware that its electronic mail system or other electronic
means of communication cannot be used due to technical failure (and
that failure is continuing for more than two (2) Business Days).
Until the Agent, the Borrower or that Lender has notified as
aforesaid that the failure has been remedied, all notices between
the Agent and the Borrower or that Lender shall be sent by fax or
letter in accordance with this Clause 23.
23.5 RECEIPT
Each such notice, demand or other communication shall be deemed to
have been made or delivered (in the case of any letter) when
delivered to its office for the time being or, if sent by post, five
(5) days after being deposited in the post first class or express
airmail (as the case may be) postage prepaid in an envelope
96
addressed to it at that address or, if sent by electronic mail, in
accordance with Clause 23.4.
23.6 LANGUAGE
Each notice, demand or other communication made or delivered by one
(1) party to another pursuant to this Agreement or any other
Security Document shall be in the English language or accompanied by
a certified English translation. In the event of any conflict
between the translation and the original text the translation shall
prevail unless the original text is a statutory instrument, legal
process or any other document of a similar type.
24 GOVERNING LAW
This Agreement shall be governed by English law.
25 WAIVER OF IMMUNITY
To the extent that the Borrower may in any jurisdiction claim for itself
or its assets immunity from suit, execution, attachment (whether in aid of
execution, before judgment or otherwise) or other legal process in
relation to this Agreement or the other Security Documents and to the
extent that in any such jurisdiction there may be attributed to itself or
its assets such immunity (whether or not claimed) the Borrower hereby
irrevocably and unconditionally agrees throughout the Security Period not
to claim and hereby irrevocably waives such immunity to the full extent
permitted by the laws of such jurisdiction. In respect of any legal action
or proceedings arising out of or in connection with any of the Security
Documents the Borrower hereby consents generally as a matter of procedure
in relation to the waiver of immunity (but not so as to prejudice any
defence which the Borrower may have on the merits of the substantive
issue) to the giving of any relief or the issue of any process in
connection with such legal action or proceedings including without
limitation, the making, enforcement or execution against any property
whatsoever (irrespective of its uses or intended uses) of any order or
judgment which may be made or given in such legal action or proceedings.
26 JURISDICTION
26.1 The courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement
(including a dispute regarding the
97
existence, validity or termination of this Agreement) (a "DISPUTE").
Each party to this Agreement agrees that the courts of England are
the most appropriate and convenient courts to settle Disputes and
accordingly no party will argue to the contrary.
This Clause 26.1 is for the benefit of the Lenders and the Agent
only. As a result, no such party shall be prevented from taking
proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, any such party may take
concurrent proceedings in any number of jurisdictions.
26.2 The Borrower may not, without the Agent's prior written consent,
terminate the appointment of the Process Agent; if the Process Agent
resigns or its appointment ceases to be effective, the Borrower
shall within fourteen (14) days appoint a company which has premises
in London and has been approved by the Agent to act as the
Borrower's process agent with unconditional authority to receive and
acknowledge service on behalf of the Borrower of all process or
other documents connected with proceedings in the English courts
which relate to this Agreement.
26.3 For the purpose of securing its obligations under Clause 26.2, the
Borrower irrevocably agrees that, if it for any reason fails to
appoint a process agent within the period specified in Clause 26.2,
the Agent may appoint any person (including a company controlled by
or associated with the Agent or any Lender) to act as the Borrower's
process agent in England with the unconditional authority described
in Clause 26.2.
26.4 No neglect or default by a process agent appointed or designated
under this Clause (including a failure by it to notify the Borrower
of the service of any process or to forward any process to the
Borrower) shall invalidate any proceedings or judgment.
26.5 The Borrower appoints in the case of the courts of England the
Process Agent to receive, for and on its behalf service of process
in England of any legal proceedings with respect to this Agreement
and any other Security Document.
26.6 A judgment relating to this Agreement which is given or would be
enforced by an English court shall be conclusive and binding on the
Borrower and may be enforced without review in any other
jurisdiction.
98
26.7 Nothing in this Clause shall exclude or limit any right which the
Agent or a Lender may have (whether under the laws of any country,
an international convention or otherwise) with regard to the
bringing of proceedings, the service of process, the recognition or
enforcement of a judgment or any similar or related matter in any
jurisdiction.
26.8 In this Clause "JUDGMENT" includes order, injunction, declaration
and any other decision or relief made or granted by a court.
IN WITNESS whereof the parties hereto have caused this Agreement to be duly
executed as a deed on the day first written above.
SIGNED SEALED and DELIVERED as a DEED ) ▇ ▇▇▇▇▇▇
By ▇▇▇▇ ▇▇▇▇▇▇ )
for and on behalf of )
NCL CORPORATION LTD. )
in the presence of: )
C ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Trainee Solicitor
▇▇▇▇▇▇▇▇ Chance LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
SIGNED SEALED and DELIVERED as a DEED ) L French
By ▇▇▇▇ ▇▇▇▇▇▇ )
for and on behalf of )
DNB NOR BANK ASA )
as a Lead Arranger, an Original Lender and the Agent )
in the presence of: )
R ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Trainee Solicitor
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇, ▇▇. ▇▇▇▇'▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
SIGNED SEALED and DELIVERED as a DEED ) L French
By ▇▇▇▇ ▇▇▇▇▇▇ )
for and on behalf of )
NORDEA BANK NORGE ASA )
as a Lead Arranger and an Original Lender )
in the presence of: )
R ▇▇▇▇▇▇
As above
99
SIGNED SEALED and DELIVERED as a DEED ) L French
By ▇▇▇▇ ▇▇▇▇▇▇ )
for and on behalf of )
COMMERZBANK AKTIENGESELLSCHAFT )
as a Co-Arranger and an Original Lender )
in the presence of: )
R ▇▇▇▇▇▇
As above
SIGNED SEALED and DELIVERED as a DEED ) L French
By ▇▇▇▇ ▇▇▇▇▇▇ )
for and on behalf of )
HSH NORDBANK AG )
as a Co-Arranger and an Original Lender )
in the presence of: )
R ▇▇▇▇▇▇
As above
SIGNED SEALED and DELIVERED as a DEED ) L French
By ▇▇▇▇ ▇▇▇▇▇▇ )
for and on behalf of )
KFW )
as a Co-Arranger and an Original Lender )
in the presence of: )
R ▇▇▇▇▇▇
As above
SIGNED SEALED and DELIVERED as a DEED ) L French
By ▇▇▇▇ ▇▇▇▇▇▇ )
for and on behalf of )
NORDDEUTSCHE LANDESBANK )
-GIROZENTRALE- )
as a Co-Arranger and an Original Lender )
in the presence of: )
R ▇▇▇▇▇▇
As above
SIGNED SEALED and DELIVERED as a DEED ) L French
By ▇▇▇▇ ▇▇▇▇▇▇ )
for and on behalf of )
VEREINS- UND WESTBANK )
AKTIENGESELLSCHAFT )
as a Co-Arranger and an Original Lender )
in the presence of: )
R ▇▇▇▇▇▇
As above
100
SCHEDULE 1
PARTICULARS OF AGENT, LEAD ARRANGERS, CO-ARRANGERS AND ORIGINAL LENDERS
NAME AND ADDRESS
AGENT
DNB NOR BANK ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Email: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇.▇▇
LEAD ARRANGERS
NAME AND ADDRESS
DNB NOR BANK ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇▇▇
Attn: Mr ▇▇▇ Flovik
Email: ▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇
NORDEA BANK NORGE ASA
Middelthuns gate ▇▇
▇▇▇▇
▇ ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇▇▇
Attn: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
101
CO-ARRANGERS
NAME AND ADDRESS
For all matters except insurance matters
COMMERZBANK AKTIENGESELLSCHAFT
Bremen Branch
▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany
Fax: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Attn: Mr ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/
▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
for all matters, including insurance matters, which are
not exclusively relating to pure payment and interest
fixing matters, with copy to
Hamburg Branch
Global Shipping
Ness 7-9
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attn: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇/▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
HSH NORDBANK ▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇-▇▇▇▇▇
Attn: ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇/▇▇ ▇▇▇▇▇▇ ▇▇▇
Email: ▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇/
▇▇▇▇▇▇.▇▇▇@▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇
KFW
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇/4110
Attn: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇/▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇/
▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇
102
NAME AND ADDRESS
NORDDEUTSCHE LANDESBANK
-GIROZENTRALE-
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attn: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ / ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇
VEREINS- UND WESTBANK
AKTIENGESELLSCHAFT
▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attn: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ / ▇▇ ▇▇▇▇▇▇ Trennt
Email: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇.▇▇ / ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇
103
LENDERS
CONTRIBUTION TO
NAME AND ADDRESS FACILITY IN USD
For all matters except insurance matters
COMMERZBANK AKTIENGESELLSCHAFT 100,000,000
Bremen Branch
▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany
Fax: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Attn: Mr ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/
▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
for all matters, including insurance matters, which
are not exclusively relating to pure payment and
interest fixing matters, with copy to
Hamburg Branch
Global Shipping
Ness 7-9
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attn: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇/▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
DNB NOR BANK ASA 150,000,000
▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇▇▇
Attn: Mr ▇▇▇ Flovik
Email: ▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇
HSH NORDBANK AG 100,000,000
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇-▇▇▇▇▇
Attn: ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇/▇▇ ▇▇▇▇▇▇ ▇▇▇
Email: ▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇/
▇▇▇▇▇▇.▇▇▇@▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇
104
CONTRIBUTION TO
NAME AND ADDRESS FACILITY IN USD
KFW 100,000,000
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇/4110
Attn: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇/▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇/
▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇
NORDDEUTSCHE LANDESBANK 100,000,000
-GIROZENTRALE-
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attn: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ / ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇
NORDEA BANK NORGE ASA 150,000,000
Middelthuns gate ▇▇
▇▇▇▇
▇ ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇▇▇
Attn: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
VEREINS- UND WESTBANK 100,000,000
AKTIENGESELLSCHAFT
▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attn: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ / ▇▇ ▇▇▇▇▇▇ Trennt
Email: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇.▇▇ / ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇
105
SCHEDULE 2
NOTICE OF DRAWDOWN
Clause 2.3
FROM: NCL CORPORATION LTD.
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇
▇▇▇▇▇▇▇
▇▇: DNB NOR BANK ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
2004
Dear Sirs
FACILITY AGREEMENT DATED 2004 (THE "FACILITY AGREEMENT")
We refer to the Facility Agreement pursuant to which you have agreed to advance
to us the Facility on the terms and conditions set out therein.
Terms and expressions defined in the Facility Agreement shall have the same
respective meanings when used in this notice.
We hereby give you notice that we wish to draw down [the Term Loan Facility/a
Drawing] in the amount of [ ] Dollars (USD[ ]) under Clause 2.3 of the Facility
Agreement on [ ] 200[ ].
Such amount is to be paid to:
[ ]
We confirm that:
(i) all of the representations and warranties contained in Clause 10 of the
Facility Agreement remain true and correct;
(ii) no Possible Event of Default or Event of Default has occurred nor will
occur with the giving of this notice;
(iii) the first Interest Period shall be of [one (1) three (3) six (6)] months'
duration;
106
(iv) the [Term Loan Facility/Drawing] will be applied [in financing the
Purchase Price due to the Seller pursuant to the MOA, refinancing the
existing finance in respect of the Norwegian Star Vessel and the Pride of
Aloha Vessel and paying the fees and expenses incurred in connection with
the Facility][for general corporate and working capital purposes of the
Borrower and its Subsidiaries]; and
(vi) [upon application of the [Term Loan Facility/Drawing] hereby requested to
be drawn down in the manner hereinbefore appearing all sums owing to the
Seller under the MOA shall have been fully and finally paid and the
existing finance in respect of the Norwegian Star Vessel and the Pride of
Aloha Vessel shall have been repaid in full.]
Yours faithfully
NCL CORPORATION LTD.
By: _____________________
107
SCHEDULE 3
CONDITIONS PRECEDENT
Clause 2.5
The Facility is expressly conditional upon the Agent having received in such
form and substance as the Lenders shall require:
A ON SIGNING HEREOF
BORROWER
1 Certified Copies of any consents required from any ministry, governmental,
financial or other authority for the execution of and performance by the
Borrower of its obligations under this Agreement and each of the Security
Documents or if no such consents are required a secretary's certificate of
the Borrower to this effect confirming that no such consents are required.
2 Notarially attested secretary's certificate for the Borrower:
2.1 attaching a copy of its Certificate of Incorporation and Memorandum
of Association and By-Laws evidencing power to:
2.1.1 enter into the transactions contemplated by this Agreement and
in the other Security Documents and to buy ships and enter
into arrangements for the chartering and management thereof;
and
2.1.2 borrow money in the amount referred to in this Agreement and
as security therefor to mortgage or charge assets;
2.2 giving the names of the present officers and directors;
2.3 setting out specimen signatures of persons who would be authorised
to sign documents or otherwise perform its obligations under the
Security Documents;
2.4 giving the legal and beneficial owners of its shares and the number
of shares held by each shareholder;
2.5 attaching copies of resolutions passed at a duly convened meeting of
the directors authorising the borrowing of the Facility and the
execution of this Agreement and
108
such of the other Security Documents to which the Borrower is a
party and the issue of any power of attorney to execute the same;
and
2.6 containing a declaration of solvency as at the date of the
secretary's certificate.
3 Where the secretary's certificate referred to in paragraph 2 of this
Schedule 3 is dated more than ten (10) days prior to the Signing Date, a
bringdown certificate, which need not be notarially attested if signed by
the same person that signed the secretary's certificate referred to in
paragraph 2 of this Schedule 3.
4 The original power of attorney issued pursuant to the resolutions referred
to in paragraph 2 above, notarially attested.
5 The Disclosure Letter duly executed.
OTHER OBLIGORS (OTHER THAN NCL (BAHAMAS) AND NCL AMERICA)
6 Certified Copies of any consents required from any ministry, governmental,
financial or other authority for the execution of and performance by each
of the other Obligors of its obligations under the Security Documents to
which it is a party or if no such consents are required a secretary's
certificate of that Obligor to this effect confirming that no such
consents are required.
7 Notarially attested secretary's certificate:
7.1 attaching a copy of its Certificate of Incorporation and Memorandum
of Association and By-Laws evidencing power to enter into the
transactions contemplated by this Agreement;
7.2 giving the names of the present officers and directors;
7.3 setting out specimen signatures of persons who would be authorised
to sign documents or otherwise perform its obligations under the
Security Documents;
7.4 attaching copies of resolutions passed at a duly convened meeting of
the directors approving the granting and the execution of the
documents whose execution is contemplated hereby, insofar as they
relate to it and the issue of any power of attorney to execute the
same; and
7.5 containing a declaration of solvency as at the date of the
secretary's certificate.
109
8 Where the secretary's certificate referred to in paragraph 7 of this
Schedule 3 is dated more than ten (10) days prior to the Signing Date, a
bringdown certificate, which need not be notarially attested if signed by
the same person that signed the secretary's certificate referred to in
paragraph 7 of this Schedule 3.
9 The original powers of attorney issued pursuant to the resolutions
referred to in paragraph 7.1 above, notarially attested.
GENERAL
10 A valuation in respect of each of the Vessels obtained in accordance with
the provisions of Clause 11.17, the aggregate of which valuations shall be
equal to or greater than one billion and fifty million Dollars
(USD1,050,000,000).
11 Confirmation from the Process Agent that it will act for each of the
Obligors as agent for service of process in England.
12 Opinions from lawyers appointed by the Agent including English and
Bermudan lawyers as to any of the foregoing matters or otherwise as the
Lenders may require in the form required by the Lenders.
13 Certified Copy of the MOA including all addenda.
14 A copy of:
14.1 the audited consolidated financial statements of the NCLC Group for
the financial year ending on 31 December 2003;
14.2 the unaudited consolidated financial statements of the NCLC Group
for the fiscal quarter ending on 31 March 2004; and
14.3 detailed projected consolidated financial statements of the NCLC
Group for the six financial years ending after the Signing Date,
which projections shall (a) reflect the forecasted consolidated
financial condition of the NCLC Group after giving effect to the
Facility and the related financing thereof; and (b) be prepared and
approved by the chief financial officer of NCL.
15 Copies of all Companies Acts forms for filing of charges in Bermuda.
16 Payment of all fees under Clause 16.
110
B AT LEAST FOUR (4) BUSINESS DAYS BEFORE THE DRAWDOWN DATE AND EACH ADVANCE
DATE
17 Drawdown notice duly executed by the Borrower in the form of Schedule 2.
C ON THE EARLIER OF THE DRAWDOWN DATE AND THE FIRST ADVANCE DATE
18 Such evidence as the Lenders may require that each of the Vessels is:
18.1 provisionally, in the case of the Norwegian Spirit Vessel, and
permanently, in the case of the Norwegian Star Vessel, registered in
the name of the relevant Owner under the Bahamian flag, and
permanently, in the case of the Pride of Aloha Vessel, registered in
the name of Pride of Aloha, with a certificate of registry free from
all liens and encumbrances except the relevant Mortgage;
18.2 classified with the highest classification available free of all
recommendations and qualifications with Det Norske Veritas;
18.3 insured in accordance with the terms of the Security Documents;
18.4 managed by the relevant Manager pursuant to the relevant Management
Agreement; and
18.5 in the case of the Pride of Aloha Vessel, managed by the Sub-Agent
pursuant to the Sub-Agency Agreement.
19 Certified Copy of the ▇▇▇▇ of sale in respect of the Norwegian Spirit
Vessel.
20 Certified Copy of the unconditional protocol of delivery and acceptance
duly signed by the Seller and Norwegian Spirit.
21 Copies of valid trading and other certificates to be produced by the
Seller pursuant to the MOA.
22 Certified Copies of the Management Agreements.
23 Certified Copy of Sub-Agency Agreement.
24 Mortgages over the Vessels duly executed and lodged for registration at
the Bahamas Maritime Authority in London and the US Coast Guard National
Vessel Documentation Center respectively.
111
25 Earnings Assignments duly executed.
26 Insurance Assignments duly executed.
27 Guarantees duly executed.
28 Charges duly executed.
29 Management Agreement Assignments duly executed.
30 Sub-Agency Agreement Assignment duly executed.
31 Telefax confirmations from the insurance brokers for marine risks (hull
and machinery) and the managers of any protection and indemnity or war
risks association through whom any Insurances have been placed in respect
of the Vessels that the Insurances have been placed and upon receipt of a
notice of assignment of the Insurances they will issue letters of
undertaking in the form approved by the Lenders.
32 Opinions from Bahamian and US lawyers appointed by the Agent as to due
registration of the Vessels and due registration of the Mortgages and from
English, Bermudan, New York and Isle of Man lawyers appointed by the Agent
as to any of the foregoing matters or otherwise as the Lenders may require
in the form required by the Lenders.
33 From the Agent's insurance advisers, a report on the Insurances for each
Vessel and a certificate confirming that such Insurances are placed with
such insurance companies and/or underwriters and/or clubs, in such
amounts, against such risks, and in such form, as should be acceptable to
the Lenders and conform with the provisions of the relevant Mortgage.
34 Where a secretary's certificate referred to in paragraph 7 of this
Schedule 3 is dated more than ten (10) days prior to the earlier of the
Drawdown Date and the first Advance Date, a bringdown certificate, which
need not be notarially attested if signed by the same person that signed
the secretary's certificate referred to in paragraph 7 of this Schedule 3.
35 Certified Copy of the carrier initiative agreement executed pursuant to
the Mortgages.
36 Certified Copies of any current certificate of financial responsibility in
respect of the Vessels issued under OPA.
112
37 Certified Copies of a valid safety management certificate (or interim
safety management certificate) issued to each of the Vessels in respect of
its management by NCL (Bahamas) pursuant to the International Safety
Management Code.
38 Certified Copy of a valid document of compliance (or interim document of
compliance) issued to NCL (Bahamas) in respect of ships of the same type
as the Vessels pursuant to the International Safety Management Code.
39 Certified Copy of a valid international ship security certificate issued
to the Vessel in accordance with the International Ship and Port Facility
Security Code adopted by the International Maritime Organisation.
NCL (BAHAMAS) AND NCL AMERICA
40 Notarially attested secretary's certificate:
40.1 attaching a copy of its Certificate of Incorporation and Memorandum
and Articles of Association (or equivalent documents) evidencing
power to enter into the transactions contemplated by this Agreement;
40.2 giving the names of the present officers and directors;
40.3 setting out specimen signatures of persons who would be authorised
to sign documents or otherwise perform its obligations under the
Security Documents;
40.4 giving the legal and beneficial owners of its issued shares and the
number of shares held by each shareholder;
40.5 attaching copies of resolutions passed at a duly convened meeting of
the directors approving the granting and the execution of the
documents whose execution is contemplated hereby, insofar as they
relate to it and the issue of any power of attorney to execute the
same; and
40.6 containing a declaration of solvency as at the date of the
secretary's certificate.
41 Where a secretary's certificate referred to in paragraph 40 of this
Schedule 3 is dated more than ten (10) days prior to the earlier of the
Drawdown Date and the first Advance Date, a bringdown certificate, which
need not be notarially attested if signed by the same person that signed
the secretary's certificate referred to in paragraph 40 of this Schedule
3.
113
42 The original powers of attorney issued pursuant to the resolutions
referred to paragraph 40.5 above, notarially attested.
GENERAL
43 Copies of Companies Act forms for filing of charges in Bermuda or the Isle
of Man.
44 Payment of all fees due under Clause 16.
114
SCHEDULE 4
CONFIDENTIALITY UNDERTAKING
[ON BANK'S HEADED PAPER]
TO: NCL CORPORATION LTD.
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ 12
Bermuda
(the "BORROWER")
DNB NOR BANK ASA
▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
(the "AGENT")
NCL CORPORATION LTD.
USD800,000,000 FACILITY (THE "FACILITY")
FORM OF CONFIDENTIALITY UNDERTAKING
1 We hereby undertake that we will keep confidential and will not make use
of for any purposes (other than for the purposes of the Facility) all
information delivered to us in connection with the Facility and all
information obtained by us in the course of discussions with the Agent,
the Borrower or any other party involved with the Facility (collectively
the "INFORMATION") until and save to the extent that the Information has
been released into the public domain by persons duly authorised by the
Borrower to do so. However, we shall be entitled to supply the Information
to:
1.1 professional advisers solely for use in connection with the Facility
after drawing to the attention of those advisers the content of the
undertaking as to confidentiality given by us and after obtaining
similar undertakings from them; and
1.2 any third party where we have been authorised in writing to do so by
the Borrower; and
1.3 subject to giving reasonable prior notice to the Borrower, to any
banking or regulatory authority to which we are subject after
drawing to the attention of such authority the content of the
undertaking as to confidentiality given by us; and
115
1.4 pursuant to subpoena or other legal process and pursuant to any law
or regulation having the force of law.
2 We further undertake that if we decide not to participate in the Facility,
we will return to the Agent the originals and additional copies or
extracts made therefrom and all documentary Information delivered to us by
the Agent in relation to the Facility and/or the Borrower (including any
supplied to third parties as contemplated in paragraph 1).
For and on behalf of
BANK NAME:
By: _______________________
Date:
116
SCHEDULE 5
TRANSFER CERTIFICATE
Lenders are advised not to employ Transfer Certificates or otherwise to assign
or transfer interests in the Facility Agreement without further ensuring that
the transaction complies with all applicable laws and requisitions, including
the Financial Services ▇▇▇ ▇▇▇▇ and regulations made thereunder and similar
statutes which may be in force in other jurisdictions.
TO: DNB NOR BANK ASA (the "AGENT") as agent on its own behalf and for and on
behalf of the Borrower, the Owners and the Lenders as defined in the
Facility Agreement referred to below
ATTENTION: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Date:
This certificate (the "TRANSFER CERTIFICATE") relates to a loan facility
agreement dated 2004 (as the same may from time to time be amended,
supplemented and/or novated the "FACILITY AGREEMENT") made between (among
others) (1) NCL Corporation Ltd. as borrower (the "BORROWER") (2) the banks and
financial institutions referred to therein as lenders (the "LENDERS") and (3)
DnB NOR Bank ASA (the "AGENT") whereby the Lenders have agreed to make available
to the Borrower a loan facility in the amount of up to eight hundred million
Dollars (USD800,000,000). Terms defined in the Facility Agreement shall, unless
otherwise defined herein, have the same meanings herein as therein.
In this Transfer Certificate:
the "TRANSFEROR" means [full name] of [lending branch];
the "TRANSFEREE" means [full name] of [lending branch].
1 The Transferor with full title guarantee transfers to the Transferee
absolutely in accordance with Clause 20.1 of the Facility Agreement all
rights and interests (present, future or contingent) which the Transferor
has as Lender under or by virtue of the Facility Agreement and all the
other Security Documents insofar as such rights and interests relate to
that portion of its Contribution to the Facility in an amount equal to [ ]
Dollars (USD[ ]) out of its total Contribution which at the date hereof is
[ ] Dollars (USD[ ]).
2 By virtue of this Transfer Certificate and Clause 20.5 of the Facility
Agreement, the Transferor is discharged entirely with effect from the
Transfer Date from that portion of
117
its Contribution to the Facility and its obligations relating thereto to
the extent of [ ] Dollars (USD[ ]) out of its total Contribution at such
date.
3 The Transferee hereby requests:
3.1 the Borrower, the Owners, the Agent and the Lenders to accept the
executed copies of this Transfer Certificate as being delivered
pursuant to and for the purposes of Clause 20.1 of the Facility
Agreement; and
3.2 the Agent to execute this Transfer Certificate on behalf of itself
and the other said parties pursuant to Clause 20.5 of the Facility
Agreement so that this Transfer Certificate will take effect in
accordance with the terms thereof on [specify date of transfer] [or]
[the date on which the Agent receives a certificate signed by [the
Transferor] confirming that the following conditions have been
fulfilled [specify conditions to transfer].
4 The Transferee:
4.1 confirms that it has received a copy of the Facility Agreement and
the other Security Documents together with such other documents and
information as it has required in connection with the transaction
contemplated thereby;
4.2 confirms that it has not relied and will not hereafter rely on the
Transferor, the Agent or the Lenders to check or enquire on its
behalf into the legality, validity, effectiveness, adequacy,
accuracy or completeness of the Facility Agreement or any other of
the Security Documents or any other documents or information;
4.3 agrees that it has not relied and will not rely on the Transferor,
the Agent or the Lenders to assess or keep under review on its
behalf the financial condition, creditworthiness, condition,
affairs, status or nature of the Borrower or any other party to the
Facility Agreement or any other of the Security Documents (save as
otherwise expressly provided therein);
4.4 warrants that it has power and authority to become a party to the
Facility Agreement and has taken all necessary action to authorise
execution of this Transfer Certificate and to obtain all necessary
approvals and consents to the
118
assumption of its obligations under the Facility Agreement and the other
Security Documents;
4.5 if not already a Lender, appoints the Agent to act as its agent as
provided in the Facility Agreement and the other Security Documents
and agrees to be bound by the terms of Clause 20.5 of the Facility
Agreement and by all the terms of Clause 22 of the Facility
Agreement.
5 The Transferor:
5.1 warrants to the Transferee that it has full power to enter into this
Transfer Certificate and has taken all corporate action necessary to
authorise it to do so;
5.2 warrants to the Transferee that this Transfer Certificate is binding
on the Transferor under the laws of England, the country in which
the Transferor is incorporated and the country in which its Lending
Branch is located; and
5.3 agrees that it will, at its own expense, execute any documents which
the Transferee reasonably requests for perfecting in any relevant
jurisdiction the Transferee's title under this Transfer Certificate
or for any similar purpose.
6 The Transferee hereby undertakes to the Transferor and each of the other
parties to the Facility Agreement that it will perform in accordance with
its terms all those obligations which by the terms of the Facility
Agreement will be assumed by it after the transfer contemplated by this
Transfer Certificate has taken effect.
7 If a Transferor and a Transferee effect a transfer in accordance with
Clause 3 of this Transfer Certificate during an Interest Period, the Agent
shall make all payments which would have become due to the Transferor
under the Facility Agreement during the relevant Interest Period to the
Transferor, as if no such transfer had been effected by the Transferor to
the Transferee, according to the percentages of the Transferor's
Contribution and/or Commitment transferred and retained pursuant to
Clauses 1 and 2 of this Transfer Certificate, and the Transferor and the
Transferee shall be responsible for paying to each other pro rata all
amounts (if any) due to them from each other for such Interest Period. On
and from the commencement of the immediately succeeding Interest Period,
the Agent shall make all payments due under the Facility Agreement for the
account of the Transferor, to the Transferor, and shall make all payments
due under the Facility Agreement for the account of the Transferee, to the
Transferee. This provision is for
119
administrative convenience only and shall not affect the rights of the
Transferor and the Transferee under the Facility Agreement.
8 None of the Transferor, the Agent or the Lenders:
8.1 makes any representation or warranty nor assumes any responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Facility Agreement or any other of the
Security Documents or any document relating thereto;
8.2 assumes any responsibility for the financial condition of the
Borrower or any other party to the Facility Agreement or any other
of the Security Documents or any such other document or for the
performance and observance by the Borrower or any other party to the
Facility Agreement or any other of the Security Documents or any
such other document (save as otherwise expressly provided therein)
and any and all such conditions and warranties, whether expressed or
implied by law or otherwise, are hereby excluded (except as
aforesaid).
9 The Transferor and the Transferee each undertakes that it will on demand
fully indemnify the Agent in respect of any claim, proceeding, liability
or expense which relates to or results from this Transfer Certificate or
any matter connected with or arising out of it unless caused by the
Agent's or the Agent's gross negligence or wilful misconduct, as the case
may be.
10 The agreements and undertaking of the Transferee in this Transfer
Certificate are given to and for the benefit of and made with each of the
other parties to the Facility Agreement.
11 This Transfer Certificate shall be governed by, and construed in
accordance with, English law.
IN WITNESS whereof the Transferor, the Transferee and the Agent (as agent for
and on behalf of itself as the Agent, the Borrower, the Owners and the Lenders
(other than the Transferor)) have caused this Transfer Certificate to be
executed on the day first written above.
120
THE TRANSFEROR
SIGNED by )
)
for and on behalf of )
[ ] )
in the presence of: )
THE TRANSFEREE
SIGNED by )
)
for and on behalf of )
[ ] )
in the presence of: )
THE AGENT
SIGNED by )
)
for and on behalf of )
DNB NOR BANK ASA )
as agent for and on behalf )
of itself as the Agent, the Borrower, )
the Owners and the Lenders )
in the presence of: )
Note: The execution of this Transfer Certificate alone may not transfer a
proportionate share of the Transferor's interest in the security
constituted by the Security Documents in the Transferor's or Transferee's
jurisdiction. It is the responsibility of each individual Lender to
ascertain whether any other documents are required to perfect a transfer
of such a share in the Transferor's interest in such security in any such
jurisdiction, and, if so, to seek appropriate advice and arrange for
execution of the same.
121
SCHEDULE
ADMINISTRATIVE DETAILS OF TRANSFEREE
Name of Transferee:
Lending Branch:
Contact Person
(Loan Administration Department):
Telephone:
Fax:
Email:
Contact Person
(Credit Administration Department):
Telephone:
Fax:
Email:
Account for Payments:
122
SCHEDULE 6
QUARTERLY STATEMENT OF FINANCIAL COVENANTS
TO: DNB NOR BANK ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
ATTN: Mr ▇▇▇ Flovik
We refer to clause 11.3 of the loan facility agreement dated 2004 (as
amended, varied and/or supplemented from time to time) (the "FACILITY
AGREEMENT") between (among others) you as agent and ourselves as borrower. Terms
defined in the Facility Agreement shall have the same meanings herein.
We hereby certify the amounts set out in the attached schedule as at the last
day of the financial quarter ending 20[ ] for NCL Corporation Ltd. (the
"BORROWER") and its subsidiaries on a consolidated basis. We also hereby certify
that the Borrower is in compliance with all the financial covenants set out in
clause 11.3 of the Facility Agreement.
NCL CORPORATION LTD.
_____________________________
BY: [ ]
Chief Financial Officer
DATED: 20[ ]
123
SCHEDULE
STATEMENT OF FINANCIAL COVENANTS AS OF [ ] 20[ ] (IN USD'000)
CLAUSE (OF
FACILITY
AGREEMENT) AS OF [o] REQUIRED COVENANTS
11.3.1 CASH BALANCE A A>USD50,000,000
>1.2:1 for 2004
11.3.2 CONSOLIDATED EBITDA: B >1.25:1 thereafter
CONSOLIDATED DEBT SERVICE C
<0.65:1 up to
31 December 2007
11.3.3 TOTAL NET FUNDED DEBT: D <0.60:1 thereafter
TOTAL CAPITALISATION E
CONSOLIDATED EBITDA
Consolidated Net Income (loss) x
(Deduct)/Add: (Gain)/Loss on sale of assets or reserves x
Add: Consolidated Interest Expense x
Add: Depreciation and amortisation of assets x
Add: Impairment charges x
(Deduct)/Add: Other non-recurring charge (gain) x
Add: Deferred income tax expense x
---
CONSOLIDATED EBITDA x B
---
CONSOLIDATED DEBT SERVICE
Principal paid/payable (excluding balloon
payments, voluntary prepayments/repayments
on sale/total loss of an NCLC Fleet vessel) x
Add: Consolidated Interest Expense x
Distributions x
Rent under capitalised leases x
---
CONSOLIDATED DEBT SERVICE x C
---
TOTAL NET FUNDED DEBT
Indebtedness for Borrowed Money x
Add: Guarantees of non-NCLC Group members'
obligations x
---
x
---
Deduct: Cash Balance (x) A
---
TOTAL NET FUNDED DEBT (x) D
---
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TOTAL CAPITALISATION
Total Net Funded Debt x
Add: Consolidated stockholders' equity x
---
TOTAL CAPITALISATION x E
---
For and on behalf of NCL CORPORATION LTD.
_______________________________
[ ]
I, [ ], the officer primarily responsible for the financial management of the
NCLC Group, hereby declare that, to the best of knowledge and belief, the above
Statement of Financial Covenants as of [ ] 20[ ], in my opinion, is true and
correct.
_______________________________
[ ]
Chief Financial Officer
NCL CORPORATION LTD.
Dated: 20[ ]
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