EXHIOBIT 2.17
--------------------------------------------------------------------------------
U.S. $345,750,000
CREDIT AGREEMENT
dated as of May 18, 2001,
among
ROYAL CARIBBEAN CRUISES LTD.
as the Borrower,
and
BANK OF AMERICA, N.A.
as the Administrative Agent,
and
THE BANK OF NOVA SCOTIA
as the Syndication Agent,
and
FIRST UNION NATIONAL BANK
as the Documentation Agent
and
the Other Lenders Party Thereto
--------------------------------------------------------------------------------
BANC OF AMERICA SECURITIES LLC
as the Sole Lead Arranger and Book Manager,
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms..........................................................................1
SECTION 1.2. Use of Defined Terms..................................................................13
SECTION 1.3. Cross-References......................................................................13
SECTION 1.4. Accounting and Financial Determinations...............................................13
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Commitments...........................................................................14
SECTION 2.1.1. Commitment of Each Lender.............................................................14
SECTION 2.1.2. Lenders Not Permitted or Required To Make Loans Under Certain Circumstances...........14
SECTION 2.1.3. Defaulting Lenders....................................................................14
SECTION 2.2. Reduction of Commitment Amount........................................................14
SECTION 2.3. Borrowing Procedure...................................................................14
SECTION 2.4. Election of Loan Types; Interest Periods..............................................15
SECTION 2.5. Funding...............................................................................15
SECTION 2.6. Notes.................................................................................15
SECTION 2.7. Increase in Combined Commitments......................................................15
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments............................................................17
SECTION 3.2. Interest Provisions...................................................................18
SECTION 3.2.1. Payment of Interest...................................................................18
SECTION 3.2.2. Post-Maturity Rates...................................................................19
SECTION 3.2.3. Interest Rate Determination; Replacement Reference Lenders............................19
SECTION 3.2.4. Adjustment of Applicable Margin and Facility Fee......................................19
SECTION 3.3. Fees..................................................................................19
SECTION 3.3.1. Facility Fee..........................................................................19
SECTION 3.3.2. Commitment Fee........................................................................19
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful............................................................20
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SECTION 4.2. Deposits Unavailable..................................................................20
SECTION 4.3. Increased LIBO Rate Loan Costs, etc...................................................21
SECTION 4.4. Funding Losses........................................................................22
SECTION 4.5. Increased Capital Costs...............................................................22
SECTION 4.6. Taxes.................................................................................23
SECTION 4.7. Reserve Costs.........................................................................25
SECTION 4.8. Replacement Lenders, etc..............................................................25
SECTION 4.9. Payments, Computations, etc...........................................................26
SECTION 4.10. Sharing of Payments...................................................................26
SECTION 4.11. Setoff................................................................................27
SECTION 4.12. Use of Proceeds.......................................................................27
ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1. Effectiveness.........................................................................27
SECTION 5.1.1. Delivery of Agreement.................................................................27
SECTION 5.1.2. Resolutions, etc......................................................................27
SECTION 5.1.3. Opinions of Counsel...................................................................28
SECTION 5.1.4. No Material Adverse Change............................................................28
SECTION 5.1.5. Note Offering.........................................................................28
SECTION 5.2. Borrowing.............................................................................28
SECTION 5.2.1. Resolutions, etc......................................................................28
SECTION 5.2.2. Delivery of Term Notes................................................................28
SECTION 5.2.3. Opinions of Counsel...................................................................28
SECTION 5.2.4. Fees, Expenses, etc...................................................................29
SECTION 5.2.5. No Material Adverse Change............................................................29
SECTION 5.2.6. Compliance with Warranties, No Default, etc...........................................29
SECTION 5.2.7. Borrowing Request.....................................................................29
SECTION 5.2.8. Note Repurchase.......................................................................29
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1. Organization, etc.....................................................................29
SECTION 6.2. Due Authorization, Non-Contravention, etc.............................................30
SECTION 6.3. Government Approval, Regulation, etc..................................................30
SECTION 6.4. Compliance with Environmental Laws....................................................30
SECTION 6.5. Validity, etc.........................................................................30
SECTION 6.6. Financial Information.................................................................31
SECTION 6.7. No Defaults under Material Agreements.................................................31
SECTION 6.8. No Default, Event of Default or Prepayment Event......................................31
SECTION 6.9. Litigation............................................................................31
SECTION 6.10. Vessels...............................................................................31
SECTION 6.11. Subsidiaries..........................................................................31
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SECTION 6.12. Obligations rank pari passu...........................................................32
SECTION 6.13. Withholding, etc......................................................................32
SECTION 6.14. No Filing, etc, Required..............................................................32
SECTION 6.15. No Immunity...........................................................................32
SECTION 6.16. Pension Plans.........................................................................32
SECTION 6.17. Investment Company Act................................................................32
SECTION 6.18. Regulation U..........................................................................32
SECTION 6.19. Accuracy of Information...............................................................33
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants.................................................................33
SECTION 7.1.1. Financial Information, Reports, Notices, etc..........................................33
SECTION 7.1.2. Approvals and Other Consents..........................................................34
SECTION 7.1.3. Compliance with Laws, etc.............................................................34
SECTION 7.1.4. Vessels...............................................................................35
SECTION 7.1.5. Insurance.............................................................................35
SECTION 7.1.6. Books and Records.....................................................................35
SECTION 7.2. Negative Covenants....................................................................35
SECTION 7.2.1. Business Activities...................................................................35
SECTION 7.2.2. Indebtedness..........................................................................36
SECTION 7.2.3. Liens.................................................................................36
SECTION 7.2.4. Financial Condition...................................................................38
SECTION 7.2.5. Investments...........................................................................38
SECTION 7.2.6. Consolidation, Merger, etc............................................................38
SECTION 7.2.7. Asset Dispositions, etc...............................................................39
SECTION 7.2.8. Transactions with Affiliates..........................................................39
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default..........................................................40
SECTION 8.1.1. Non-Payment of Obligations............................................................40
SECTION 8.1.2. Breach of Warranty....................................................................40
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations..................................40
SECTION 8.1.4. Default on Other Indebtedness.........................................................40
SECTION 8.1.5. Pension Plans.........................................................................41
SECTION 8.1.6. Bankruptcy, Insolvency, etc...........................................................41
SECTION 8.1.7. Ownership of Principal Subsidiaries...................................................42
SECTION 8.2. Action if Bankruptcy..................................................................42
SECTION 8.3. Action if Other Event of Default......................................................42
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ARTICLE IX
PREPAYMENT EVENTS
SECTION 9.1. Listing of Prepayment Events..........................................................42
SECTION 9.1.1. Chance in Ownership...................................................................43
SECTION 9.1.2. Change in Board.......................................................................43
SECTION 9.1.3. Unenforceability......................................................................43
SECTION 9.1.4. Approvals.............................................................................43
SECTION 9.1.5. Non-Performance of Certain Covenants and Obligations..................................43
SECTION 9.1.6. Judgments.............................................................................44
SECTION 9.1.7. Condemnation, etc.....................................................................44
SECTION 9.1.8. Arrest................................................................................44
SECTION 9.2. Mandatory Prepayment..................................................................44
ARTICLE X
THE AGENT
SECTION 10.1. Actions...............................................................................44
SECTION 10.2. Exculpation...........................................................................45
SECTION 10.3. Successor.............................................................................45
SECTION 10.4. Loans by the Administrative Agent.....................................................46
SECTION 10.5. Credit Decisions......................................................................46
SECTION 10.6. Copies, etc...........................................................................46
SECTION 10.7. Agency Fee............................................................................47
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc..............................................................47
SECTION 11.2. Notices...............................................................................48
SECTION 11.3. Payment of Costs and Expenses.........................................................48
SECTION 11.4. Indemnification.......................................................................48
SECTION 11.5. Survival..............................................................................49
SECTION 11.6. Severability..........................................................................49
SECTION 11.7. Headings..............................................................................49
SECTION 11.8. Execution in Counterparts, Effectiveness, etc.........................................49
SECTION 11.9. Governing Law: Entire Agreement.......................................................49
SECTION 11.10. Successors and Assigns................................................................49
SECTION 11.11. Sale and Transfer of Loans and Note: Participations in Loans and Note.................50
SECTION 11.11.1. Assignments...........................................................................50
SECTION 11.11.2. Participations........................................................................51
SECTION 11.12. Other Transactions....................................................................52
SECTION 11.13. Forum Selection and Consent to Jurisdiction...........................................52
SECTION 11.14. Process Agent.........................................................................53
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SECTION 11.15. Waiver of Jury Trial..................................................................53
EXHIBIT A FORM OF TERM NOTE.....................................................................A-1
EXHIBIT B BORROWING REQUEST.....................................................................B-1
EXHIBIT C INTEREST PERIOD NOTICE................................................................C-1
EXHIBIT D-1 [Form of Opinion of Counsel to the Borrower]........................................D-1-1
EXHIBIT D-2 [Form of Opinion of Liberian Counsel to the Borrower]...............................D-2-1
EXHIBIT E LENDER ASSIGNMENT AGREEMENT...........................................................E-1
EXHIBIT F FORM OF COMMITMENT INCREASE AGREEMENT.................................................F-1
EXHIBIT G FORM OF ADDED LENDER AGREEMENT........................................................G-1
v
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of May 18, 2001, is among ROYAL
CARIBBEAN CRUISES LTD., a Liberian corporation (the "BORROWER"), the various
financial institutions as are or shall become parties hereto (collectively, the
"LENDERS") and BANK OF AMERICA, N.A. ("BANK OF AMERICA"), as administrative
agent (in such capacity, the "ADMINISTRATIVE AGENT") for the Lenders, THE BANK
OF NOVA SCOTIA., as syndication agent (in such capacity, the "SYNDICATION
AGENT"), and FIRST UNION NATIONAL BANK, as documentation agent (in such
capacity, the "DOCUMENTATION AGENT").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make available to
the Borrower a term loan facility in the principal amount of up to $345,750,000,
the proceeds of which are to be used to finance the purchase of the Convertible
Notes (as defined below) on the Note Repurchase Date (as defined below); and
WHEREAS, the Lenders are willing to make such term loan facility
available to the Borrower upon the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. DEFINED TERMS. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, when capitalized, except where the context otherwise requires, have the
following meanings, such meanings to be equally applicable to the singular and
plural forms thereof:
"ADDED LENDER" is defined in SECTION 2.7.
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent, and as shall have accepted such appointment, pursuant to
SECTION 10.3.
"ADVANCE DATE" means the date upon which the Loan is advanced in
accordance with SECTION 2.1.
"AFFILIATE" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person. A Person shall be deemed to be "controlled by" any other Person if such
other Person possesses, directly or indirectly, power to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise.
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"AGREEMENT" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"APPLICABLE JURISDICTION" means the jurisdiction or jurisdictions under
which the Borrower is organized, domiciled or resident or from which any of its
business activities are conducted or in which any of its properties are located
and which has jurisdiction over the subject matter being addressed.
"APPLICABLE MARGIN" means, as of any date, the percentage per annum set
forth below opposite the Senior Debt Rating on such date provided by S&P and
▇▇▇▇▇'▇:
SENIOR DEBT RATING APPLICABLE MARGIN
------------------ -----------------
(S&P) (▇▇▇▇▇'▇)
BBB+ or higher Baa1 or higher 0.350%
BBB Baa2 0.400%
BBB- Baa3 0.450%
BB+ or lower Ba1 or lower 0.650%
PROVIDED that:
(a) if at any time the Senior Debt Rating provided by ▇▇▇▇▇'▇
differs from the Senior Debt Rating provided by S&P, and the rating
differential is one level, the Applicable Margin shall be a percentage
per annum equal to the lower of the respective percentages set forth
opposite such two Senior Debt Ratings;
(b) if at any time the Senior Debt Rating provided by ▇▇▇▇▇'▇
differs from the Senior Debt Rating provided by S&P, and the rating
differential is more than one level, the Applicable Margin shall be a
percentage per annum equal to the average of the respective percentages
set forth opposite such two Senior Debt Ratings;
(c) if at any time a Senior Debt Rating is provided by one of
but not both ▇▇▇▇▇'▇ and S&P, the Applicable Margin shall be determined
by reference to the Senior Debt Rating provided by the agency which
gives such rating; and
(d) if at any time no Senior Debt Rating is provided by
▇▇▇▇▇'▇ and no Senior Debt Rating is provided by S&P, the Applicable
Margin shall be .750% per annum unless (i) within 21 days of being
notified by the Administrative Agent that both ▇▇▇▇▇'▇ and S&P have
ceased to give a Senior Debt Rating, the Borrower has obtained from at
least one of such agencies a private implied rating for its senior debt
or (ii) having failed to obtain such private rating within such 21-day
period, the Borrower and the Lenders shall have agreed within a further
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15-day period (during which period the Borrower and the Administrative
Agent shall consult in good faith to find an alternative method of
providing an implied rating of the Borrower's senior debt) on an
alternative rating method, which agreed alternative shall apply for the
purposes of this Agreement.
"APPLICABLE PERCENTAGE" means, as of any date, the percentage per annum
set forth below opposite the Senior Debt Rating on such date provided by S&P and
▇▇▇▇▇'▇:
SENIOR DEBT RATING APPLICABLE PERCENTAGE
------------------ ---------------------
(S&P) (▇▇▇▇▇'▇)
BBB+ or higher Baa1 or higher 0.100%
BBB Baa2 0.125%
BBB- Baa3 0.150%
BB+ or lower Ba1 or lower 0.200%
PROVIDED that:
(a) if at any time the Senior Debt Rating provided by ▇▇▇▇▇'▇
differs from the Senior Debt Rating provided by S&P, and the rating
differential is one level, the Applicable Percentage shall be a
percentage per annum equal to the lower of the respective percentages
set forth opposite such two Senior Debt Ratings;
(b) if at any time the Senior Debt Rating provided by ▇▇▇▇▇'▇
differs from the Senior Debt Rating provided by S&P, and the rating
differential is more than one level, the Applicable Percentage shall be
a percentage per annum equal to the average of the respective
percentages set forth opposite such two Senior Debt Ratings;
(c) if at any time a Senior Debt Rating is provided by one of
but not both ▇▇▇▇▇'▇ and S&P, the Applicable Percentage shall be
determined by reference to the Senior Debt Rating provided by the
agency which gives such rating; and
(d) if at any time no Senior Debt Rating is provided by
▇▇▇▇▇'▇ and no Senior Debt Rating is provided by S&P, the Applicable
Percentage shall be .250% per annum unless (i) within 21 days of being
notified by the Administrative Agent that both ▇▇▇▇▇'▇ and S&P have
ceased to give a Senior Debt Rating, the Borrower has obtained from at
least one of such agencies a private implied rating for its senior debt
or (ii) having failed to obtain such private rating within such 21-day
period, the Borrower and the Lenders shall have agreed within a further
15-day period (during which period the Borrower and the Administrative
Agent shall consult in good faith to find an alternative method of
providing an implied rating of the Borrower's senior debt) on an
alternative rating method, which agreed alternative shall apply for the
purposes of this Agreement.
"APPROVED APPRAISER" means any of the following: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, H ▇▇▇▇▇▇▇▇ & Co. Ltd., London, ▇.▇. ▇▇▇▇▇▇ Shipbrokers, Norway, or
Fearnley AS, Norway.
"ASSIGNEE LENDER" is defined in SECTION 11.11.1.
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"AUTHORIZED OFFICER" means those officers of the Borrower authorized to
act with respect to the Loan Documents and whose signatures and incumbency shall
have been certified to the Administrative Agent by the Secretary or an Assistant
Secretary of the Borrower.
"BANK OF AMERICA" is defined in the Preamble.
"BASE RATE" means, for any day, the rate per annum equal to the higher
of (i) the Federal Funds Rate for such day plus one-half of one percent (0.5%)
and (ii) the Prime Rate for such day. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the Prime Rate or Federal Funds Rate.
"BASE RATE ADVANCE" means any advance of a portion of the Loan,
interest rates on which are determined on the basis of the Base Rate.
"BASE RATE LOAN" means any portion of the Loan, the interest rate on
which is determined on the basis of the Base Rate as in effect on each day.
"BORROWER" is defined in the preamble.
"BORROWING" means the advance of each Lender's Commitment pursuant to
ARTICLE II.
"BORROWING REQUEST" means the loan request and certificate duly
executed by an Authorized Officer of the Borrower, substantially in the form of
EXHIBIT B-1 hereto.
"BUSINESS DAY" means any day which is neither a Saturday or Sunday nor
a legal holiday on which banks are authorized or required to be closed in Miami,
San Francisco, California, New York City or London.
"CAPITALIZATION" means, as at any date, the sum of (a) Total Debt on
such date, plus (b) Stockholders' Equity on such date.
"CAPITALIZED LEASE LIABILITIES" means the principal portion of all
monetary obligations of the Borrower or any of its Subsidiaries under any
leasing or similar arrangement which, in accordance with GAAP, would be
classified as capitalized leases, and, for purposes of this Agreement and each
other Loan Document, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP.
"CLOSING DATE" means the Effective Date.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COMMITMENT" means, relative to any Lender, such Lender's obligation to
make the Loan pursuant to SECTION 2.1.1.
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"COMMITMENT AMOUNT" means, on any date, up to $345,750,000, as such
amount shall established on the Advance Date or shall be reduced from time to
time pursuant to SECTION 2.2 or increased from time to time pursuant to SECTION
2.7.
"COMMITMENT TERMINATION DATE" means the earliest of:
(a) the date on which the Commitment Amount is terminated in
full or reduced to zero pursuant to SECTION 2.2; and
(b) the date on which any Commitment Termination Event occurs.
"COMMITMENT TERMINATION EVENT" means:
(a) the occurrence of any Default described in CLAUSES (a)
through (d) of SECTION 8.1.6;
(b) the occurrence and continuance of any Event of Default
(other than as described in CLAUSE (A) above) and the giving of notice
by the Administrative Agent, acting at the direction of the Required
Lenders, to the Borrower that the Commitments have been terminated;
(c) the occurrence and continuance of a Prepayment Event and
the giving of notice by the Administrative Agent, acting at the
direction of the Required Lenders, to the Borrower that the Commitments
have been terminated; or
(d) The day next following the Note Repurchase Notice Date if
the notice described in Section 1110 of the Indenture with respect to
the Note Repurchase is not given by any of the holders of the
Convertible Notes in accordance with the Indenture.
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414 (b) or 414(c) of
the Code or Section 4001 of ERISA.
"CONVERTIBLE NOTES" means those certain Zero Coupon Convertible Notes
Due 2021 of the Borrower issued on the date hereof pursuant to the Indenture.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect affecting the rights
of creditors generally.
"DEFAULT" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
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"DEFAULT RATE" means (i) with respect to each LIBO Loan a rate of two
percent (2%) above the LIBO Rate plus the Applicable Margin applicable to such
Loan, (ii) with respect to Base Rate Loans, fees and other amounts payable in
respect of Obligations, a rate of interest per annum which shall be two percent
(2%) above the Base Rate and (iii) in any case, the maximum rate permitted by
applicable law, if lower.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto as
SCHEDULE I.
"DOLLAR" and the sign "$" mean lawful money of the United States.
"EFFECTIVE DATE" means the date this Agreement becomes effective
pursuant to SECTION 5.1.
"ENVIRONMENTAL LAWS" means all applicable federal, state, local or
foreign statutes, laws, ordinances, codes, rules and regulations (including
consent decrees and administrative orders) relating to the protection of the
environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"EVENT OF DEFAULT" is defined in SECTION 8.1.
"EXISTING DEBT" means the obligations of the Borrower and its
Subsidiaries, as amended from time to time, under (i) the Loan Facility
Agreement with respect to the vessel ZENITH dated June 21, 1990 between KfW and
Zenith Shipping Corporation, (ii) the Lease Agreement, with respect to the
vessel LEGEND OF THE SEAS, dated March 3, 1993 between G.I.E. Cruise Vision One
and the Borrower, (iii) the Lease Agreement, with respect to the vessel
SPLENDOUR OF THE SEAS, dated March 3, 1993 between G.I.E. Cruise Vision Two and
the Borrower, (iv) the Loan Facility Agreement with respect to the vessel
CENTURY, dated November 29, 1993 between KfW and Blue Sapphire Marine Inc., (v)
the Loan Facility Agreement with respect to the vessel GALAXY, dated November
29, 1993 between KfW and ▇▇▇▇▇ Marine Shipping Inc., and (vi) the Loan Facility
Agreement with respect to the vessel MERCURY, dated December 12, 1997 between
KfW and Seabrook Maritime Inc.
"EXISTING GROUP" means the following Persons: (a) ▇. ▇▇▇▇▇▇▇▇▇▇ AS, a
Norwegian corporation ("Wilhelmsen"); (b) Cruise Associates, a Bahamian general
partnership ("CRUISE"); and (c) any Affiliate of either or both of Wilhelmsen
and Cruise.
"EXISTING PRINCIPAL SUBSIDIARIES" means each Subsidiary of the Borrower
that is a Principal Subsidiary on the date hereof.
"EXISTING REVOLVING CREDIT AGREEMENT" means the Amended and Restated
Credit Agreement dated as of June 28, 1996 among the Borrower, the various
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financial institutions party thereto and The Bank of Nova Scotia, as
administrative agent, as amended, supplemented or replaced from time to time.
"FACILITY FEE" has the meaning given to such term in SECTION 3.3.1.
"FEDERAL FUNDS RATE" means the rate of interest charged by the Federal
Reserve to its member banks.
"FISCAL QUARTER" means any quarter of a Fiscal Year.
"FISCAL YEAR" means any annual fiscal reporting period of the Borrower.
"FIXED CHARGE COVERAGE RATIO" means, as of the end of any Fiscal
Quarter, the ratio computed for the period of four consecutive Fiscal Quarters
ending on the close of such Fiscal Quarter of:
(a) net cash from operating activities (determined in
accordance with GAAP) for such period, as shown in the Borrower's
consolidated statement of cash flow for such period, TO
(b) the sum of:
(i) dividends actually paid by the Borrower during
such period (including, without limitation, dividends in
respect of preferred stock of the Borrower); PLUS
(ii) scheduled payments of principal of all debt,
less new financings (determined in accordance with GAAP, but
in any event including Capitalized Lease Liabilities) of the
Borrower and its Subsidiaries for such period.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in SECTION 1.4.
"GOVERNMENT-RELATED OBLIGATIONS" means obligations of the Borrower or
any Subsidiary of the Borrower under, or Indebtedness incurred by the Borrower
or any Subsidiary of the Borrower to satisfy obligations under, any governmental
requirement imposed by any Applicable Jurisdiction that must be complied with to
enable the Borrower and its Subsidiaries to continue their business in such
Applicable Jurisdiction, excluding, in any event, any taxes imposed on the
Borrower or any Subsidiary of the Borrower.
"HEREIN", "HEREOF", "HERETO", "HEREUNDER" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
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"INCREASED COMMITMENT DATE" is defined in SECTION 2.7.
"INCREASING LENDER" is defined in SECTION 2.7.
"INDEBTEDNESS" of any Person means, without duplication:
(a) indebtedness of such Person (whether present or future,
actual or contingent, long-term or short-term, secured or unsecured) in
respect of moneys borrowed or raised, the advance or extension of
credit (including interest and commitment or guarantee commission but
not including arrangement or other fees and other charges on or in
respect of any of the foregoing);
(b) the amount of any liability of such Person in respect of
leases entered into for the purpose of raising or obtaining finance or
in respect of the purchase price for assets or services payment of
which is deferred for a period in excess of 180 days; and
(c) indebtedness of such Person (whether present or future,
actual or contingent, long-term or short-term, secured or unsecured) in
respect of guarantees or letters of credit.
"INDEMNIFIED LIABILITIES" is defined in SECTION 11.4.
"INDEMNIFIED PARTIES" is defined in SECTION 11.4.
"INDENTURE" means that certain Eleventh Supplemental Indenture dated as
of the date hereof by and between the Borrower and The Bank of New York, as
trustee, pursuant to which the Convertible Notes were issued, as such Eleventh
Supplemental Indenture is in effect on the date hereof.
"INTEREST PAYMENT DATE" means any date on which interest is payable
with respect to Loans pursuant to SECTION 3.2.1.
"INTEREST PERIOD" means, relative to any portion of a Loan, the period
beginning on (and including) the date on which such Loan is made or continued
pursuant to SECTION 2.3 or 2.4 and shall (i) with respect to LIBO Loans end on
(but exclude) the day which numerically corresponds to such date one, two, three
or six months thereafter or longer (PROVIDED that any Interest Period longer
than six months duration shall be subject to availability and the agreement of
all the Lenders) or, if such month has no numerically corresponding day, on the
last Business Day of such month, in either case as the Borrower may select in
its relevant notice pursuant to SECTION 2.3 or 2.4 and (ii) with respect to Base
Rate Loans end on the earlier of the date on which it is repaid or the date on
which it is converted to a LIBO Loan; PROVIDED that:
(a) the Borrower shall not be permitted (i) to select Interest
Periods to be in effect at any one time which have expiration dates
occurring on more than eight different dates or (ii) except to the
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extent provided in SECTION 2.4, to have outstanding more than four
one-month Interest Periods with respect to any Loan in any 12-month
period (unless otherwise agreed to by the Required Lenders);
(b) if such Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next
following Business Day (unless such next following Business Day is the
first Business Day of a calendar month, in which case such Interest
Period shall end on the Business Day next preceding the first Business
Day of such calendar month); and
(c) no Interest Period may end later than the Stated Maturity
Date.
"INTEREST PERIOD NOTICE" means a certificate duly executed by an
Authorized Officer of the Borrower, substantially in the form of EXHIBIT C
hereto.
"INVESTMENT" means, relative to any Person,
(a) any loan or advance made by such Person to any other
Person (excluding commission, travel, expense and similar advances to
officers and employees made in the ordinary course of business); and
(b) any ownership or similar interest held by such Person in
any other Person.
"LENDER ASSIGNMENT AGREEMENT" means a Lender Assignment Agreement
substantially in the form of EXHIBIT E.
"LENDERS" is defined in the PREAMBLE.
"LIBO ADVANCE" means any advance of a portion of the Loan, interest
rates on which are determined on the basis of LIBO Rates.
"LIBO LOAN" means any portion of the Loan, the interest rate on which
is determined on the basis of LIBO Rate.
"LIBOR OFFICE" means, relative to any Lender, the office of such Lender
designated as its Lending Office below its signature hereto or designated in a
Lender Assignment Agreement or such other office of a Lender as designated from
time to time by notice from Lender to the Borrower and the Administrative Agent,
whether or not outside the United States, which shall be making or maintaining
Loans of such Lender hereunder.
"LIBO RATE" means, for the Interest Period applicable thereto, the rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Telerate Page 3750 (or any successor page) as the London interbank offered
rate for deposits in Dollars at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
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available, the term "LIBO Rate" shall mean, with respect to any LIBO Rate Loan
for the Interest Period applicable thereto, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page
as the London interbank offered rate for deposits in Dollars at approximately
11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period, PROVIDED,
HOWEVER, if more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates (rounded upwards,
if necessary, to the nearest 1/100 of 1%); PROVIDED that subject to SECTION
3.2.4, if no such offered quotation appears on Telerate Page 3750 or the Reuters
Screen LIBO Page at the relevant time, the LIBO Rate shall be the rate per annum
certified by the Administrative Agent to be the average of the rates quoted by
the Reference Lenders as the rate at which each of the Reference Lenders was (or
would have been) offered deposits of Dollars by prime banks in the London
interbank eurocurrency market in an amount approximately equal to the amount of
each such Reference Lender's Loan for the relevant Borrowing and for a period
approximately equal to such Interest Period. For the purpose of determining the
Default Rate, the LIBO Rate shall be determined by reference to deposits on an
overnight or call basis or for such other period or periods as the
Administrative Agent may determine after consultation with the Lenders.
"LIEN" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property to secure payment of a debt or
performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"LOAN" is defined in SECTION 2.1.1.
"LOAN DOCUMENT" means this Agreement and the Term Notes.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
financial condition of the Borrower or (b) the Borrower's ability to pay when
due principal of or interest on the Loans or other amounts payable by the
Borrower hereunder.
"MATERIAL LITIGATION" is defined in SECTION 6.9.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"NOTE OFFERING" the issuance by the Borrower of the Convertible Notes
in accordance with the Indenture.
"NOTE REPURCHASE" means the required repurchase of the Convertible
Notes on the Note Repurchase Date at the option of the holders thereof pursuant
to Section 1110 of the Indenture.
"NOTE REPURCHASE AMOUNT" means the aggregate repurchase price of all
Convertible Notes subject to repurchase on the Note Repurchase Date.
"NOTE REPURCHASE NOTICE DATE" means May 13, 2004.
"NOTE REPURCHASE DATE" means May 18, 2004.
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"OBLIGATIONS" means all obligations (monetary or otherwise) of the
Borrower arising under or in connection with this Agreement and the Term Notes.
"ORGANIC DOCUMENT" means, relative to the Borrower, its certificate of
incorporation and its by-laws.
"PARTICIPANT" is defined in SECTION 11.11.2.
"PENSION PLAN" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multi-employer plan as defined in section 4001(a)(3) of ERISA), and to which the
Borrower or any corporation, trade or business that is, along with the Borrower,
a member of a Controlled Group, may have liability, including any liability by
reason of being deemed to be a contributing sponsor under section 4069 of ERISA.
"PERCENTAGE" means, relative to any Lender, the percentage set forth
opposite its signature hereto or as set forth in the applicable Lender
Assignment Agreement, as such percentage may be adjusted from time to time
pursuant to Lender Assignment Agreement(s) executed by such Lender and its
Assignee Lenders and delivered pursuant to SECTION 11.11.1.
"PERSON" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.
"PREPAYMENT EVENT" is defined in SECTION 9.1.
"PRIME RATE" means the per annum rate of interest established from time
to time by the Administrative Agent as its prime rate, which rate may not be the
lowest rate of interest charged by the Administrative Agent to its customers.
"PRINCIPAL SUBSIDIARY" means any Subsidiary of the Borrower that owns a
Vessel.
"REFERENCE LENDERS" means Bank of America and includes each replacement
Reference Lender appointed by the Administrative Agent pursuant to SECTION
3.2.3.
"REQUIRED LENDERS" means, at any time, Lenders that, in the aggregate,
have more than 50% of the Commitments or, if the Commitments shall have
terminated, Lenders that, in the aggregate, hold more than 50% of the aggregate
unpaid principal amount of the Loans; PROVIDED, HOWEVER, if at any time any
Lender holds more than 50% of the Commitments, or, if the Commitments shall have
terminated, more than 50% of the aggregate unpaid principal amount of the Loans,
then "Required Lenders" shall mean that Lender and at least one other Lender.
"REUTERS SCREEN LIBO PAGE" means the display designated as "LIBO Page"
on the Reuters Screen.
"S&P" means Standard & Poor's Corporation.
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"SENIOR DEBT RATING" means, as of any date, (a) the implied senior debt
rating of the Borrower for debt PARI PASSU in right of payment and in right of
collateral security with the Obligations as given by Moody's and S&P or (b) in
the event the Borrower receives an actual unsecured senior debt rating (apart
from an implied rating) from Moody's and/or S&P, such actual rating or ratings,
as the case may be (and in such case the Senior Debt Rating shall not be
determined by reference to any implied senior debt rating from either agency).
"STATED MATURITY DATE" means the third anniversary of the Advance Date.
"STOCKHOLDERS' EQUITY" means, as at any date, the Borrower's
stockholders' equity on such date, determined in accordance with GAAP, PROVIDED
that any non-cash charge to Stockholders' Equity resulting (directly or
indirectly) from a change after the Effective Date in GAAP or in the
interpretation thereof shall be disregarded in the computation of Stockholders'
Equity such that the amount of any reduction thereof resulting from such change
shall be added back to Stockholders' Equity.
"SUBSIDIARY" means, with respect to any Person, any corporation of
which more than 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person.
"TAXES" is defined in SECTION 4.6.
"TELERATE PAGE 3750" means the display designated as "Page 3750" on the
Telerate Service (or such other page as may replace Page 3750 on that service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for deposits in Dollars).
"TERM NOTE" means a promissory note of the Borrower payable to any
Lender, in the form of EXHIBIT A hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from the Loan, and also
means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"TERMINATION DATE" means the earliest of:
(a) the Stated Maturity Date;
(b) the Commitment Termination Date; or
(c) the repayment in full in cash of all Obligations.
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"TOTAL DEBT" means, at any time, the aggregate outstanding principal
amount of all debt (including, without limitation, the principal portion of all
capitalized leases) of the Borrower and its Subsidiaries (determined on a
consolidated basis in accordance with GAAP).
"TOTAL DEBT TO CAPITALIZATION RATIO" means, as at any date, the ratio
of (a) Total Debt on such date to (b) Capitalization on such date.
"UNITED STATES" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"VESSEL" means a passenger cruise vessel owned by the Borrower or one
of its Subsidiaries.
"VOTING STOCK" means shares of capital stock of the Borrower of any
class or classes (however designated) that have by the terms thereof normal
voting power to elect the members of the Board of Directors of the Borrower
(other than voting power upon the occurrence of a stated contingency, such as
the failure to pay dividends).
SECTION 1.2. USE OF DEFINED TERMS. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall, when capitalized, have such meanings when used in the
Disclosure Schedule and in each Term Note, Borrowing Request, notice and other
communication delivered from time to time in connection with this Agreement or
any other Loan Document.
SECTION 1.3. CROSS-REFERENCES. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. ACCOUNTING AND FINANCIAL DETERMINATIONS. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under SECTION 7.2.4) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared,
in accordance with United States generally accepted accounting principles
("GAAP") consistently applied (or, if not consistently applied, accompanied by
details of the inconsistencies); PROVIDED that if, as a result of any change in
GAAP or in the interpretation thereof after the date of the financial statements
referred to in SECTION 6.6, there is a change in the manner of determining any
of the items referred to herein that are to be determined by reference to GAAP,
and the effect of such change would (in the reasonable opinion of the
Administrative Agent) be such as to affect the basis or efficacy of the
covenants contained in SECTION 7.2.4 in ascertaining the financial condition of
the Borrower or the consolidated financial condition of the Borrower and its
Subsidiaries, then such item shall for the purposes of such Sections of this
Agreement continue to be determined in accordance with GAAP relating thereto as
GAAP were applied immediately prior to such change in GAAP or in the
interpretation thereof.
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ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND TERM NOTES
SECTION 2.1. COMMITMENTS. On the terms and subject to the conditions of
this Agreement (including ARTICLE V), each Lender severally agrees to make on or
prior to the Commitment Termination Date the Loans pursuant to the Commitments
described in this SECTION 2.1.
SECTION 2.1.1. COMMITMENT OF EACH LENDER. Each Lender will make a loan
(relative to such Lender, its "LOAN") to the Borrower equal to such Lender's
Percentage of the aggregate amount of the Borrowing requested by the Borrower,
which requested amount shall not exceed the Note Repurchase Amount. The
commitment of each Lender described in this SECTION 2.1.1 is herein referred to
as its "COMMITMENT".
SECTION 2.1.2. LENDERS NOT PERMITTED OR REQUIRED TO MAKE THE LOAN UNDER
CERTAIN CIRCUMSTANCES. No Lender shall be permitted or required to make the Loan
if, after giving effect thereto, the aggregate outstanding principal amount of
all Loans
(a) of all Lenders would exceed the lesser of (a) the
Commitment Amount and (b) the Note Repurchase Amount, or
(b) of such Lender would exceed such Lender's Percentage of
the Commitment Amount.
SECTION 2.1.3. DEFAULTING LENDERS. If any Lender shall default in its
obligations under SECTION 2.1, the Administrative Agent shall, at the request of
the Borrower, use reasonable efforts to find a bank or other financial
institution acceptable to the Borrower to replace such Lender on terms
acceptable to the Borrower and to have such bank or other financial institution
replace such Lender.
SECTION 2.2. REDUCTION OF COMMITMENT AMOUNT. On and after the
Commitment Termination Date, the Commitment Amount shall automatically terminate
and be deemed to be zero.
SECTION 2.3. BORROWING PROCEDURE. Subject to the terms and conditions
of this Agreement, each Lender severally agrees to advance the Loan to the
Borrower and the Borrower agrees to borrow in a single advance on the day
following the Note Repurchase Date an amount requested by the Borrower up to the
lesser of (a) the Commitment Amount and (b) the Note Repurchase Amount on a pro
rata basis determined by the Commitment of such Lender. Any portion of the
Commitment Amount which remains undrawn after the Advance Date shall no longer
be available to the Borrower. No amount of the Loan repaid or prepaid by the
Borrower may be reborrowed hereunder. By delivering a Borrowing Request to the
Administrative Agent on or before 6:00 p.m., New York time, on the Note
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Repurchase Date, the Borrower may irrevocably request a Base Rate Advance. On or
before 9:00 a.m., New York time, on the day following the Note Repurchase Date,
each Lender shall, without any set-off or counterclaim, deposit with the
Administrative Agent same day funds in an amount equal to such Lender's
Percentage of the requested Borrowing. Such deposit will be made to an account
which the Administrative Agent shall specify by notice to the Lenders. To the
extent funds are so received from the Lenders, the Administrative Agent shall,
without any set-off or counterclaim, make such funds available to the Borrower
on or before 10:00 a.m., New York time, on the day following the Note Repurchase
Date by wire transfer of same day funds to the accounts the Borrower shall have
specified in its Borrowing Request. No Lender's obligation to make any Loan
shall be affected by any other Lender's failure to make any Loan.
SECTION 2.4. ELECTION OF LOAN TYPES; INTEREST PERIODS. By delivering an
Interest Period Notice to the Administrative Agent on or before 11:00 a.m., New
York time, on a Business Day, the Borrower may from time to time irrevocably
elect, on not less than three Business Days' notice in the case of LIBO Loans
and not less than same Business Day notice in the case of Base Rate Loans that
all, or any portion in an aggregate minimum amount of $10,000,000 and a multiple
of $1,000,000 (or the remaining amount of any Borrowing), of Loans be continued
as or designated as LIBO Loans or Base Rate Loans with, in the case of LIBO
Loans, an Interest Period of one, two, three or six months duration (or a longer
duration, subject to availability and the agreement of all the Lenders);
PROVIDED that each such continuation or designation shall be pro rated among the
applicable outstanding Loans of all Lenders. In the absence of delivery of an
Interest Period Notice with respect to any LIBO Loan at least two Business Days
before the last day of the then current Interest Period with respect thereto,
such LIBO Loan shall, on such last day, automatically be continued as a LIBO
Loan with an Interest Period of three-months' duration.
SECTION 2.5. FUNDING. Each Lender may, if it so elects, fulfill its
obligation to make or continue Loans hereunder by causing one of its foreign
branches or Affiliates (or an international banking facility created by such
Lender) to make or maintain such Loan; PROVIDED that such Loan shall nonetheless
be deemed to have been made and to be held by such Lender, and the obligation of
the Borrower to repay such Loan shall nevertheless be to such Lender for the
account of such foreign branch, Affiliate or international banking facility.
SECTION 2.6. TERM NOTES. Each Lender's Loan under its Commitment shall
be evidenced by a Term Note payable to the order of such Lender in a maximum
principal amount equal to such Lender's Percentage of the Loan. The Borrower
hereby irrevocably authorizes each Lender to make (or cause to be made)
appropriate notations on the grid attached to such Lender's Term Note (or of any
continuation of such grid), which notations, if made, shall evidence, INTER
ALIA, the date of, the outstanding principal of, and the interest rate and
Interest Period applicable to the Loan evidenced thereby, PROVIDED that the
failure of any Lender to make any such notations shall not limit or otherwise
affect any Obligations of the Borrower.
SECTION 2.7. INCREASE IN COMBINED COMMITMENTS.
(a) The Borrower shall have the right prior to the Note Repurchase
Date, without the consent of the Lenders but subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld), to
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effectuate from time to time an increase in the combined Commitments under this
Agreement by adding to this Agreement one or more commercial banks or financial
institutions (who shall, upon completion of the requirements of this SECTION 2.7
constitute "Lenders" hereunder) (an "Added Lender"), or by allowing one or more
Lenders in their sole discretion to increase their respective Commitments
hereunder (each an "Increasing Lender"), so that such added and increased
Commitments shall equal the increase in the Commitment Amount effectuated
pursuant to this SECTION 2.7; PROVIDED that (i) no added Commitment shall be
less than $5,000,000, (ii) no increase in or added Commitments pursuant to this
SECTION 2.7 shall result in combined Commitments exceeding $406,000,000, (iii)
no Lender's Commitment shall be increased under this SECTION 2.7 without the
consent of such Lender, (iv) there shall exist no Default or Event of Default
immediately prior to and immediately after giving effect to such increased or
added Commitment, and (v) there shall have been no ratable reduction of
Commitments pursuant to SECTION 2.2.1. The Borrower shall deliver or pay, as
applicable, to the Administrative Agent by 2:00 P.M. New York time on the fifth
Business Day preceding the effective date of any increase in the Commitment
Amount each of the following items with respect to each Added Lender and
Increasing Lender:
(i) a written notice of the Borrower's intention to increase
the combined Commitments pursuant to this SECTION 2.7, which shall
specify each new Lender, if any, the changes in amounts of Commitments
that will result, and such other information as is reasonably requested
by the Administrative Agent;
(ii) documents in the form of EXHIBIT F or EXHIBIT G as may be
required by the Administrative Agent, executed and delivered by each
new Lender and each Lender agreeing to increase its Commitment,
pursuant to which it becomes a party hereto or increases its
Commitment, as the case may be; and
(iii) a non-refundable processing fee of $3,500 with respect
to each Added Lender or Increasing Lender for the sole account of the
Administrative Agent.
(b) Upon receipt of any notice referred to in clause (a)(i) above, the
Administrative Agent shall promptly notify each Lender thereof. Upon execution
and delivery of such documents and the payment of such fee (the "Increased
Commitment Date"), such new Lender shall constitute a "Lender" hereunder with a
Commitment as specified therein, or such Lender's Commitment shall increase as
specified therein, as the case may be. Immediately upon the effectiveness of the
addition of such Added Lender or the increase in the Commitment of such
Increasing Lender under this SECTION 2.7, the respective Percentages of the
Lenders shall be deemed modified as appropriate to correspond to such changed
combined Commitments
(c) This section shall supercede any provisions in SECTION 11.1 to the
contrary.
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ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. REPAYMENTS AND PREPAYMENTS.
(a) The Borrower shall repay in full the unpaid principal amount of the
Loan upon the Stated Maturity Date. Prior thereto, the Borrower
(i) may, from time to time on any Business Day, make
a voluntary prepayment, in whole or in part, of the
outstanding principal amount of the Loan; PROVIDED that
(A) any such prepayment shall be made PRO
RATA among all LIBO Rate Loans with the same Interest
Period, if any;
(B) all such voluntary prepayments shall
require at least three Business Days' (or, if such
prepayment is to be made on the last day of an
Interest Period for such LIBO Rate Loans, two
Business Days') prior written notice to the
Administrative Agent; and
(C) all such voluntary partial prepayments
shall be in an aggregate minimum amount of
$10,000,000 and a multiple of $1,000,000 (or the
remaining amount of the Loans being prepaid); and
(ii) shall, immediately upon any acceleration of the
Stated Maturity Date of the Loan pursuant to SECTION 8.2 or
8.3 or the mandatory repayment of the Loan pursuant to SECTION
9.2, repay the outstanding principal amount of the Loan.
(b) Each prepayment made pursuant to this Section shall be without
premium or penalty, except as may be required by SECTION 4.4.
(c) Unless the Borrower or any Lender has notified the Administrative
Agent prior to the date any payment to be made by it is due, that it does not
intend to remit such payment, the Administrative Agent may, in its sole and
absolute discretion, assume that the Borrower or the Lender, as the case may be,
has timely remitted such payment and may, in its sole and absolute discretion
and in reliance thereon, make available such payment to the Person entitled
thereto. If such payment was not in fact remitted to the Administrative Agent in
immediately available funds, then:
(i) if the Borrower failed to make such payment, each
Lender shall forthwith on demand repay to the Administrative
Agent the amount of such assumed payment made available to
such Lender, together with interest thereon in respect of each
day from and including the date such amount was made available
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by the Administrative Agent to such Lender to the date such
amount is repaid to the Administrative Agent at the Federal
Funds Rate; and
(ii) if any Lender failed to make such payment, the
Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such
Lender does not pay such corresponding amount forthwith upon
the Administrative Agent's demand therefor, the Administrative
Agent promptly shall notify the Borrower, and the Borrower
shall pay such corresponding amount to the Administrative
Agent. The Administrative Agent also shall be entitled to
recover from such Lender interest on such corresponding amount
in respect of each day from the date such corresponding amount
was made available by the Administrative Agent to the Borrower
to the date such corresponding amount is recovered by the
Administrative Agent, (A) from such Lender at a rate per annum
equal to the daily Federal Funds Rate, and (B) from the
Borrower, at a rate per annum equal to the interest rate
applicable to such Borrowing. Nothing herein shall be deemed
to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which the Administrative
Agent or the Borrower may have against any Lender as a result
of any default by such Lender hereunder.
(d) If the Administrative Agent or any Lender is required at any time
to return to the Borrower, or to a trustee, receiver, liquidator, custodian, or
any official under any proceeding under Debtor Relief Laws, any portion of a
payment made by the Borrower, each Lender shall, on demand of the Administrative
Agent, return its share of the amount to be returned, plus interest thereon from
the date of such demand to the date such payment is made at a rate per annum
equal to the daily Federal Funds Rate.
SECTION 3.2. INTEREST PROVISIONS. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this SECTION 3.2.
SECTION 3.2.1. PAYMENT OF INTEREST. The Borrower shall pay interest on
the outstanding and unpaid principal amount of the Loan, commencing on the first
date of the Loan until the Loan shall be repaid, at the applicable Base Rate or
LIBO Rate plus the Applicable Margin as designated by the Borrower in the
Borrowing Request or related Interest Period Notice or as otherwise provided
hereunder. Interest on the Loan shall be paid on the earlier of (a) in the case
of any Base Rate Loan, quarterly in arrears on the last Business Day of each
March, June, September and December, commencing on June 30, 2004, until the
Commitment Termination Date, at which date the entire principal amount of and
all accrued interest on the Loan shall be paid in full, (b) in the case of any
LIBO Rate Loan, on last day of the applicable Interest Period for such LIBO Rate
Loan and if such Interest Period extends for more than three (3) months, at
intervals of three (3) months after the first day of such Interest Period, and
(c) upon payment in full of the related LIBO Rate Loan. Each LIBO Rate Loan
shall bear interest from and including the first day of the applicable Interest
Period to (but not including) the last day of such Interest Period.
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SECTION 3.2.2. POST-MATURITY RATES. After the date any principal amount
of the Loan is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise), or after any other monetary Obligation of the
Borrower shall have become due and payable, the Borrower shall pay, but only to
the extent permitted by law, interest (after as well as before judgment) on such
amounts for each day during the period of such default at the Default Rate.
SECTION 3.2.3. INTEREST RATE DETERMINATION; REPLACEMENT REFERENCE
LENDERS. Each Reference Lender agrees to furnish to the Administrative Agent
timely information for the purpose of determining the LIBO Rate in the event
that no offered quotation appears on Telerate Page 3750 and the Reuters Screen
LIBO Page and the LIBO Rate is to be determined by reference to quotations
supplied by the Reference Lenders. If any one or more of the Reference Lenders
shall fail to furnish in a timely manner such information to the Administrative
Agent for any such interest rate, the Administrative Agent shall determine such
interest rate on the basis of the information furnished by the remaining
Reference Lenders (PROVIDED, that, if all of the Reference Lenders other than
the Administrative Agent fail to supply the relevant quotations, the interest
rate will be fixed by reference only to the quotation obtained by the
Administrative Agent in its capacity as a Reference Lender). If a Reference
Lender ceases for any reason to be able and willing to act as such, the
Administrative Agent shall, at the direction of the Required Lenders and after
consultation with the Borrower and the Lenders, appoint a replacement for such
Reference Lender reasonably acceptable to the Borrower, and such replaced
Reference Lender shall cease to be a Reference Lender hereunder. The
Administrative Agent shall furnish to the Borrower and to the Lenders each
determination of the LIBO Rate made by reference to quotations of interest rates
furnished by Reference Lenders.
SECTION 3.2.4. ADJUSTMENT OF APPLICABLE MARGIN AND FACILITY FEE. The
Borrower and each Lender party hereto agrees that the Applicable Margin and the
Facility Fee shall be automatically adjusted and deemed amended hereunder to
reflect any increase in the "Applicable Margin" or the "Applicable Percentage"
as defined and set forth in the Existing Revolving Credit Agreement and any
refinancing or replacement thereof. Any such increase in the Applicable Margin
or the Applicable Percentage hereunder shall take effect at the same time as the
corresponding increase in the Existing Revolving Credit Agreement or the
refinancing or replacement thereof.
SECTION 3.3. FEES.
SECTION 3.3.1. FACILITY FEE. For the period beginning on the Closing
Date and ending on the earlier to occur of (a) the Commitment Termination Date
and (b) the Note Repurchase Date, the Borrower agrees to pay to the
Administrative Agent, for the pro rata benefit of the Lenders based on their
Lender's Percentages, a facility fee equal to the Applicable Percentage
multiplied by the Commitment Amount. Such fees shall be due in arrears on the
last Business Day of each March, June, September and December commencing on June
29, 2001, to and on the earlier to occur of (i) the Commitment Termination Date
and (ii) the Note Repurchase Date.
SECTION 3.3.2. COMMITMENT FEE. On the Advance Date, the Borrower agrees
to pay to the Administrative Agent, for the pro rata benefit of the Lenders
based on their Lender's Percentages, a commitment fee equal to 25 basis points
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multiplied by the Commitment Amount. Notwithstanding the foregoing, so long as
any Lender fails to make available any portion of its Commitment when requested,
such Lender shall not be entitled to receive payment of its pro rata share of
such commitment fee until such Lender shall make available such portion.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO RATE LENDING UNLAWFUL. If the introduction of or any
change in or in the interpretation of any law makes it unlawful, or any central
bank or other governmental authority having jurisdiction over such Lender
asserts that it is unlawful, for such Lender to make, continue or maintain any
Loan bearing interest at a rate based on the LIBO Rate, the obligations of such
Lender to make, continue or maintain any Loans bearing interest at a rate based
on the LIBO Rate shall, upon notice thereof to the Borrower, the Administrative
Agent and each other Lender, forthwith be suspended until the circumstances
causing such suspension no longer exist, PROVIDED that such Lender's obligation
to make, continue and maintain Loans hereunder shall be automatically converted
into an obligation to make, continue and maintain Loans bearing interest at a
rate to be negotiated between such Lender and the Borrower that is the
equivalent of the sum of the LIBO Rate for the relevant Interest Period PLUS the
Applicable Margin and shall otherwise be treated as a LIBO Loan.
SECTION 4.2. DEPOSITS UNAVAILABLE. If the Administrative Agent shall
have determined that:
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Reference Lenders in
their relevant market; or
(b) by reason of circumstances affecting the Reference
Lenders' relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to LIBO Loans,
then the Administrative Agent shall give notice of such determination
(hereinafter called a "DETERMINATION NOTICE") to the Borrower and each of the
Lenders. The Borrower, the Lenders and the Administrative Agent shall then
negotiate in good faith in order to agree upon a mutually satisfactory interest
rate and interest period (or interest periods) to be substituted for those which
would otherwise have applied under this Agreement. If the Borrower, the Lenders
and the Administrative Agent are unable to agree upon an interest rate (or
rates) and interest period (or interest periods) prior to the date occurring
thirty days after the giving of such Determination Notice, the Administrative
Agent shall (after consultation with the Lenders) set an interest rate and an
interest period (or interest periods), in each case to take effect at the end of
the Interest Period current at the date of the Determination Notice, which rate
(or rates) shall be equal to the sum of the Applicable Margin and the cost to
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each of the Lenders of funding its respective Commitment. In the event that the
circumstances described in this SECTION 4.2 shall extend beyond the end of an
interest period agreed or set pursuant hereto, the foregoing procedure shall be
repeated as often as may be necessary.
SECTION 4.3. INCREASED LIBO RATE LOAN COSTS, ETC. If a change in
any applicable treaty, law, regulation or regulatory requirement or in the
interpretation thereof or in its application to the Borrower, or if compliance
by any Lender with any applicable direction, request, requirement or guideline
(whether or not having the force of law) of any governmental or other authority
insofar as it may be changed or imposed after the date hereof, shall:
(a) subject any Lender to any taxes, levies, duties, charges,
fees, deductions or withholdings of any nature with respect to its
Commitment or any part thereof imposed, levied, collected, withheld or
assessed by any jurisdiction or any political subdivision or taxing
authority thereof (other than taxation on overall net income and, to
the extent such taxes are described in SECTION 4.6, withholding taxes);
or
(b) change the basis of taxation to any Lender (other than a
change in taxation on the overall net income of such Lender) of
payments of principal or interest or any other payment due or to become
due pursuant to this Agreement; or
(c) impose, modify or deem applicable any reserve or capital
adequacy requirements (other than the reserve costs described in
SECTION 4.7) or other banking or monetary controls or requirements
which affect the manner in which a Lender shall allocate its capital
resources to its obligations hereunder or require the making of any
special deposits against or in respect of any assets or liabilities of,
deposits with or for the account of, or loans by, any Lender (PROVIDED
that such Lender shall, unless prohibited by law, allocate its capital
resources to its obligations hereunder in a manner which is consistent
with its present treatment of the allocation of its capital resources);
or
(d) impose on any Lender any other condition affecting its
Commitment or any part thereof,
and the result of any of the foregoing is either (i) to increase the cost to
such Lender of making available its share of the Commitment Amount or
maintaining its Commitment or any part thereof, (ii) to reduce the amount of any
payment received by such Lender or its effective return hereunder or on its
capital or (iii) to cause such Lender to make any payment or to forego any
return based on any amount received or receivable by such Lender hereunder, then
and in any such case if such increase or reduction in the opinion of such Lender
materially affects the interests of such Lender, (A) the Lender concerned shall
(through the Administrative Agent) notify the Borrower of the occurrence of such
event and use reasonable efforts to avoid the effects of such law, regulation or
regulatory requirement or any change therein or in the interpretation thereof
and, in particular, shall consider, subject to obtaining any necessary consents,
fulfilling its obligations through another office or transferring its Commitment
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to one or more of its Affiliates or other financial institutions not affected by
such law, regulation or regulatory requirement and (B) the Borrower shall
forthwith upon demand pay to the Administrative Agent for the account of such
Lender such amount as is necessary to compensate such Lender for such additional
cost or such reduction and ancillary expenses, including taxes, incurred as a
result of such adjustment. Such notice shall (i) describe in reasonable detail
the event leading to such additional cost, together with the approximate date of
the effectiveness thereof, (ii) set forth the amount of such additional cost,
(iii) describe the manner in which such amount has been calculated, (iv) certify
that the method used to calculate such amount is the Lender's standard method of
calculating such amount, (v) certify that such request is consistent with its
treatment of other borrowers that are subject to similar provisions, and (vi)
certify that, to the best of its knowledge, such change in circumstance is of
general application to the commercial banking industry in such Lender's
jurisdiction of organization or in the relevant jurisdiction in which such
Lender does business. Notwithstanding the foregoing, the Borrower shall not be
obligated to reimburse any Lender for any additional cost under this SECTION 4.3
arising prior to 60 days preceding the date of request unless the applicable law
or regulation is expressly imposed retroactively, in which case such notice
shall be provided to the Borrower not later than 90 days after the date that
such Lender reasonably should have learned of such law or regulation (and in
such case the Borrower's obligation to pay additional amounts to such Lender
under this Section for periods prior to such 60-day period is conditioned on the
giving of such timely notice).
SECTION 4.4. FUNDING LOSSES. In the event any Lender shall incur any
loss or expense by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to make, continue or maintain any portion of
the principal amount of any Loan as a LIBO Loan as a result of:
(a) any conversion or repayment or prepayment of the principal
amount of any Loans on a date other than the scheduled last day of the
Interest Period applicable thereto, whether pursuant to SECTION 3.1 or
otherwise; or
(b) any Loans not being made in accordance with the Borrowing
Request therefor due to the fault of the Borrower or as a result of any
of the conditions precedent set forth in ARTICLE V not being satisfied;
then, upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five Business Days of its
receipt thereof, pay directly to such Lender such amount as will reimburse such
Lender for such loss or expense. Such written notice shall include calculations
in reasonable detail setting forth the loss or expense to such Lender.
SECTION 4.5. INCREASED CAPITAL COSTS. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority increases the amount of capital required to be
maintained by any Lender or any Person controlling such Lender, and the rate of
return on its or such controlling Person's capital as a consequence of its
Commitment or the Loans made by such Lender is reduced to a level below that
which such Lender or such controlling Person would have achieved but for the
occurrence of any such change in circumstance, then, in any such case upon
notice from time to time by such Lender to the Borrower, the Borrower shall
immediately pay directly to such Lender additional amounts sufficient to
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compensate such Lender or such controlling Person for such reduction in rate of
return. Any such notice shall (i) describe in reasonable detail the capital
adequacy requirements which have been imposed, together with the approximate
date of the effectiveness thereof, (ii) set forth the amount of such lowered
return, (iii) describe the manner in which such amount has been calculated, (iv)
certify that the method used to calculate such amount is such Lender's standard
method of calculating such amount, (v) certify that such request for such
additional amounts is consistent with its treatment of other borrowers that are
subject to similar provisions and (vi) certify that, to the best of its
knowledge, such change in circumstances is of general application to the
commercial banking industry in the jurisdictions in which such Lender does
business. In determining such amount, such Lender may use any method of
averaging and attribution that it shall, subject to the foregoing sentence, deem
applicable. Each Lender will take all reasonable actions that are available to
it to avoid such reduction in such rate of return (including by designating a
different LIBOR Office), provided that no Lender shall be obligated to designate
a LIBOR Office located in the United States. Notwithstanding the foregoing, the
Borrower shall not be obligated to reimburse any Lender for any lowered return
under this Section 4.5 arising prior to 60 days preceding the date of request
unless the applicable law or regulation is expressly imposed retroactively, in
which case such notice shall be provided to the Borrower not later than 90 days
after the date that such Lender reasonably should have learned of such law or
regulation (and in such case the Borrower's obligation to pay additional amounts
to such Lender for such reduction for any period prior to such 60-day period is
conditioned on the giving of such timely notice).
SECTION 4.6. TAXES. All payments by the Borrower of principal of, and
interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding (i) franchise taxes and taxes imposed on or measured by any Lender's
net income or receipts and (ii) any tax imposed by reason of (A) the failure of
the certification made by any Lender on any form provided pursuant to the last
paragraph of this SECTION 4.6 to be true and correct when made in all material
respects or (B) the failure of the Administrative Agent or any Lender to comply
with the last paragraph of this SECTION 4.6 or (C) the failure by any Lender to
file any other certification, notification, statement, return or other document
that it is entitled to file (such non-excluded items being called "Taxes"). In
the event that any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then the Borrower will:
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an official
receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority; and
(c) pay to the Administrative Agent for the account of the
Lenders such additional amount or amounts as is necessary to ensure
that the net amount actually received by each Lender will equal the
full amount such Lender would have received had no such withholding or
deduction been required.
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Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and the Borrower will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such person would have received
had no such Taxes been asserted.
The Administrative Agent and each Lender shall take all reasonable
actions that are available to it to avoid the imposition of any Taxes on
payments by the Borrower hereunder.
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of the respective Lenders, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure (so long as such amount did not become payable as a result of the
failure of such Lender to provide timely notice to the Borrower of the assertion
of a liability related to the payment of Taxes). For purposes of this SECTION
4.6, a distribution hereunder by the Administrative Agent or any Lender to or
for the account of any Lender shall be deemed a payment by the Borrower.
If any Lender is entitled to any refund, credit, deduction or other
reduction in tax by reason of any payment made by the Borrower in respect of any
tax under this SECTION 4.6 or by reason of any payment made by the Borrower
pursuant to SECTION 4.3, such Lender shall use reasonable efforts to obtain such
refund, credit, deduction or other reduction and, promptly after receipt
thereof, will pay to the Borrower such amount (plus any interest received by
such Lender in connection with such refund, credit, deduction or reduction) as
is equal to the net after-tax value to such Lender of such part of such refund,
credit, deduction or reduction as such Lender reasonably determines is allocable
to such tax or such payment, provided that no Lender shall be obligated to
disclose to the Borrower any information regarding its tax affairs or tax
computations.
Each Lender (and each Participant) that is organized under the laws of
a jurisdiction other than the United States agrees with the Borrower and the
Administrative Agent that it will (a) provide to the Administrative Agent (and
the Administrative Agent agrees to forward to the Borrower) an appropriately
executed copy of Internal Revenue Service Form 4224 certifying that any payments
made to or for the benefit of such Lender or such Participant are effectively
connected with a trade or business in the United States (or, alternatively,
Internal Revenue Service Form 1001, but only if the applicable treaty described
in such form provides for a complete exemption from U.S. federal income tax
withholding), or any successor form, on or prior to the date hereof (or, in the
case of any assignee Lender or Participant, on or prior to the date of the
relevant assignment or participation), and (b) notify the Administrative Agent
and the Borrower if the certifications made on any form provided pursuant to
this paragraph are no longer accurate and true in all material respects.
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SECTION 4.7. RESERVE COSTS. Without in any way limiting the Borrower's
obligations under SECTION 4.3, the Borrower shall pay to each Lender on the last
day of each Interest Period, so long as the relevant LIBOR Office of such Lender
is required to maintain reserves against "Eurocurrency liabilities" under
Regulation D of the F.R.S. Board, upon notice from such Lender, an additional
amount equal to the product of the following for each Loan for each day during
such Interest Period:
(i) the principal amount of such Loan outstanding on such day;
and
(ii) the remainder of (x) a fraction the numerator of which is
the rate (expressed as a decimal) at which interest accrues on such
Loan for such Interest Period as provided in this Agreement (less the
Applicable Margin) and the denominator of which is one MINUS any
increase after the Effective Date in the effective rate (expressed as a
decimal) at which such reserve requirements are imposed on such Lender
MINUS (y) such numerator; and
(iii) 1/360.
Such notice shall (i) describe in reasonable detail the reserve requirement that
has been imposed, together with the approximate date of the effectiveness
thereof, (ii) set forth the applicable reserve percentage, (iii) certify that
such request is consistent with such Lender's treatment of other borrowers that
are subject to similar provisions and (iv) certify that, to the best of its
knowledge, such requirements are of general application in the commercial
banking industry in the United States.
Each Lender will take all reasonable actions that are available to it to avoid
the requirement of maintaining such reserves (including by designating a
different LIBOR Office), PROVIDED that no Lender shall be obligated to designate
a LIBOR Office located in the United States.
SECTION 4.8. REPLACEMENT LENDERS, ETC. If the Borrower shall be
required to make any payment to any Lender pursuant to SECTION 4.3, 4.4, 4.5,
4.6 or 4.7, the Borrower shall be entitled at any time (so long as no Default
and no Prepayment Event shall have occurred and be continuing) within 180 days
after receipt of notice from such Lender of such required payment to (a)
terminate such Lender's Commitment and such Lender's right to receive any fee
described in SECTION 3.3 accruing after such termination, (b) prepay the
affected portion of such Lender's Loans in full, together with accrued interest
thereon through the date of such prepayment (PROVIDED that the Borrower shall
not prepay any such Lender pursuant to this clause (b) without replacing such
Lender, pursuant to the following clause (c) until a 30-day period shall have
elapsed during which the Borrower and the Administrative Agent shall have
attempted in good faith to replace such Lender), and/or (c) replace such Lender
with another bank reasonably acceptable to the Administrative Agent. Each Lender
represents and warrants to the Borrower that, as of the date of this Agreement
(or, with respect to any Lender not a party hereto on the date hereof, on the
date that such Lender becomes a party hereto), there is no existing treaty, law,
regulation, regulatory requirement, interpretation, directive, guideline,
decision or request pursuant to which such Lender would be entitled to request
any payments under any of SECTIONS 4.3, 4.4, 4.5, 4.6 and 4.7 to or for account
of such Lender.
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SECTION 4.9. PAYMENTS, COMPUTATIONS, ETC. Unless otherwise expressly
provided, all payments by the Borrower pursuant to this Agreement, the Term
Notes or any other Loan Document shall be made by the Borrower to the
Administrative Agent for the PRO RATA account of the Lenders entitled to receive
such payment. All such payments required to be made to the Administrative Agent
shall be made, without setoff, deduction or counterclaim, not later than 11:00
a.m., New York time, on the date due, in same day or immediately available funds
through the New York Clearing House Interbank Payments System (or such other
funds as may be customary for the settlement of international banking
transactions in Dollars), to such account as the Administrative Agent shall
specify from time to time by notice to the Borrower. Funds received after that
time shall be deemed to have been received by the Administrative Agent on the
next succeeding Business Day. The Administrative Agent shall promptly (but in
any event on the same Business Day that the same are received or, as
contemplated in the immediately preceding sentence, deemed received) remit in
same day funds to each Lender its share, if any, of such payments received by
the Administrative Agent for the account of such Lender without any setoff,
deduction or counterclaim. All interest and fees shall be computed on the basis
of the actual number of days (including the first day but excluding the last
day) occurring during the period for which such interest or fee is payable over
a year comprised of 360 days. Whenever any payment to be made shall otherwise be
due on a day which is not a Business Day, such payment shall (except as
otherwise required by CLAUSE (C) of the definition of the term "INTEREST PERIOD"
with respect to LIBO Rate Loans) be made on the next succeeding Business Day and
such extension of time shall be included in computing interest and fees, if any,
in connection with such payment.
SECTION 4.10. SHARING OF PAYMENTS. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan (other than pursuant to the terms of
SECTIONS 4.3, 4.4, 4.5, 4.6, and 4.7) in excess of its PRO RATA share of
payments then or therewith obtained by all Lenders, such Lender shall purchase
from the other Lenders such participations in Loans made by them as shall be
necessary to cause such purchasing Lender to share the excess payment or other
recovery ratably with each of them; PROVIDED that if all or any portion of the
excess payment or other recovery is thereafter recovered from such purchasing
Lender, the purchase shall be rescinded and each Lender which has sold a
participation to the purchasing Lender shall repay to the purchasing Lender the
purchase price to the ratable extent of such recovery together with an amount
equal to such selling Lender's ratable share (according to the proportion of (a)
the amount of such selling Lender's required repayment to the purchasing Lender
TO (b) the total amount so recovered from the purchasing Lender) of any interest
or other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section may, to the fullest
extent permitted by law, exercise all its rights of payment (including pursuant
to SECTION 4.9) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such participation. If
under any applicable bankruptcy, insolvency or other similar law, any Lender
receives a secured claim in lieu of a setoff to which this Section applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders entitled
under this Section to share in the benefits of any recovery on such secured
claim.
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SECTION 4.11. SETOFF. Each Lender shall have the right to appropriate
and apply to the payment of the Obligations owing to it any and all balances,
credits, deposits, accounts or moneys of the Borrower then or thereafter
maintained with such Lender; PROVIDED that any such appropriation and
application shall be subject to the provisions of SECTION 4.10. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender; PROVIDED that the failure to
give such notice shall not affect the validity of such setoff and application.
The rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff under applicable law or otherwise)
which such Lender may have.
SECTION 4.12. USE OF PROCEEDS. The Borrower shall apply the proceeds of
each Borrowing in accordance with the first recital; without limiting the
foregoing, no proceeds of any Loan will be used to acquire any "margin stock",
as defined in F.R.S. Board Regulation U.
ARTICLE V
CONDITIONS TO EFFECTIVENESS AND BORROWING
SECTION 5.1. EFFECTIVENESS. This Agreement shall only become effective
upon the prior or concurrent satisfaction of each of the conditions precedent
set forth in this SECTION 5.1.
SECTION 5.1.1. DELIVERY OF AGREEMENT. The Administrative Agent and the
Borrower shall have received counterparts hereof executed on behalf of the
Borrower and each Lender and notice thereof shall have been given by the
Administrative Agent to the Borrower and each Lender.
SECTION 5.1.2. RESOLUTIONS, ETC. The Administrative Agent shall have
received from the Borrower;
(a) a certificate, dated the date of the Closing Date, of its
Secretary or Assistant Secretary as to the incumbency and signatures of
those of its officers authorized to act with respect to this Agreement
and each other Loan Document and as to the truth and completeness of
the attached:
(i) resolutions of its Board of Directors then in
full force and effect authorizing the execution, delivery and
performance of this Agreement and each other Loan Document,
and
(ii) Organic Documents of the Borrower,
and upon which certificate each Lender may conclusively rely until it
shall have received a further certificate of the Secretary of the
Borrower canceling or amending such prior certificate; and
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(b) a Certificate of Good Standing issued by the relevant
Liberian authorities in respect of the Borrower.
SECTION 5.1.3. OPINIONS OF COUNSEL. The Administrative Agent shall have
received opinions, dated the Closing Date and addressed to the Administrative
Agent and each Lender, from:
(a) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., counsel to the Borrower,
substantially in the form of EXHIBIT D-1 hereto; and
(b) ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Borrower, as to
Liberian Law, substantially in the form of EXHIBIT D-2 hereto.
SECTION 5.1.4. NO MATERIAL ADVERSE CHANGE. There shall not have
occurred any change since March 31, 2001 in the business, assets, liabilities
(actual or contingent), operations, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole, which change
would have a Material Adverse Effect.
SECTION 5.1.5. NOTE OFFERING. The Note Offering shall be consummated
and the Administrative Agent shall have received copies of the executed
Indenture certified as true and correct by an Authorized Officer.
SECTION 5.2. BORROWING. The obligations of the Lenders to fund the
Borrowing on the Advance Date shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in this SECTION 5.2.
SECTION 5.2.1. RESOLUTIONS, ETC. The Administrative Agent shall have
received from the Borrower:
(a) a certificate, dated the date of the Borrowing, of its
Secretary or Assistant Secretary that the authorizing resolutions of
its Board of Directors delivered on the Closing Date are in full force
and effect and have not been modified or rescinded; and
(b) a Certificate of Good Standing issued by the relevant
Liberian authorities in respect of the Borrower.
SECTION 5.2.2. DELIVERY OF TERM NOTES. The Administrative Agent shall
have received, for the account of the respective Lenders, the Term Notes duly
executed and delivered by the Borrower.
SECTION 5.2.3. OPINIONS OF COUNSEL. The Administrative Agent shall have
received opinions, dated the date of the Borrowing and addressed to the
Administrative Agent and each Lender, from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., counsel to
the Borrower and ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Borrower, as to
Liberian Law confirming in all respects as of the Advance Date the opinions
delivered by such counsel on the Closing Date
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SECTION 5.2.4. FEES, EXPENSES, ETC. The Administrative Agent shall
have received for its own account, or for the account of each Lender, as the
case may be, all fees the Borrower shall have agreed in writing to pay to the
Administrative Agent (whether for its own account or for that of any of the
Lenders) on or prior to the Advance Date.
SECTION 5.2.5. NO MATERIAL ADVERSE CHANGE. There shall not have
occurred any change since March 31, 2001 in the business, assets, liabilities
(actual or contingent), operations, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole, which change
would have a Material Adverse Effect.
SECTION 5.2.6. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Both
before and after giving effect to the Borrowing the following statements shall
be true and correct:
(a) the representations and warranties set forth in ARTICLE VI
(excluding, however, those contained in SECTIONS 6.10 and 6.13) shall
be true and correct with the same effect as if then made; and
(b) no Default and no Prepayment Event and no event which
(with notice or lapse of time or both) would become a Prepayment Event
shall have then occurred and be continuing.
SECTION 5.2.7. BORROWING REQUEST. The Administrative Agent shall
have received a Borrowing Request for the Borrowing. Each of the delivery of a
Borrowing Request and the acceptance by the Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing (both immediately before and after giving effect to
such Borrowing and the application of the proceeds thereof) the statements made
in SECTION 5.2.6 are true and correct.
SECTION 5.2.8. NOTE REPURCHASE. A Purchase Notice (as defined in
Section 1110 of the Indenture) shall have been provided, and not withdrawn, by
any holder of the Convertible Notes.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the Lenders and the Administrative Agent to enter into this
Agreement and to make the Loan hereunder, the Borrower represents and warrants
to the Administrative Agent and each Lender as set forth in this ARTICLE VI as
of the Closing Date and, except with respect to the representations and
warranties in SECTION 6.10 and 6.13, as of the Advance Date.
SECTION 6.1. ORGANIZATION, ETC. The Borrower and each of the Principal
Subsidiaries is a corporation validly organized and existing and in good
standing under the laws of its jurisdiction of incorporation; the Borrower is
duly qualified to do business and is in good standing as a foreign corporation
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in each jurisdiction where the nature of its business requires such
qualification, except where the failure to be so qualified would not have a
Material Adverse Effect; and the Borrower has full power and authority, has
taken all corporate action and holds all governmental and creditors' licenses,
permits, consents and other approvals necessary to enter into each Loan Document
and to perform the Obligations.
SECTION 6.2. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The execution,
delivery and performance by the Borrower of this Agreement and each other Loan
Document, are within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, and do not:
(a) contravene the Borrower's Organic Documents;
(b) contravene any law or governmental regulation of any
Applicable Jurisdiction;
(c) contravene any court decree or order binding on the
Borrower or any of its property;
(d) contravene any contractual restriction binding on the
Borrower or any of its property; or
(e) result in, or require the creation or imposition of, any
Lien on any of the Borrower's properties.
SECTION 6.3. GOVERNMENT APPROVAL, REGULATION, ETC. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person is required for the due execution,
delivery or performance by the Borrower of this Agreement or any other Loan
Document (except for authorizations or approvals not required to be obtained on
or prior to the Closing Date that have been obtained or actions not required to
be taken on or prior to the Closing Date that have been taken). Each of the
Borrower and each Principal Subsidiary holds all governmental licenses, permits
and other approvals required to conduct its business as conducted by it on the
Closing Date, except to the extent the failure to hold any such licenses,
permits or other approvals would not have a Material Adverse Effect.
SECTION 6.4. COMPLIANCE WITH ENVIRONMENTAL LAWS. The Borrower and each
Principal Subsidiary is in compliance with all applicable Environmental Laws,
except to the extent that the failure to so comply would not have a Material
Adverse Effect.
SECTION 6.5. VALIDITY, ETC. This Agreement constitutes, and the Term
Notes will, on the due execution and delivery thereof, constitute, the legal,
valid and binding obligations of the Borrower enforceable in accordance with
their respective terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally or by general equitable principles.
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SECTION 6.6. FINANCIAL INFORMATION. The consolidated balance sheet of
the Borrower and its Subsidiaries as at December 31, 2000, and the related
consolidated statements of operations and cash flows of the Borrower and its
Subsidiaries, copies of which have been furnished to the Administrative Agent
and each Lender, have been prepared in accordance with GAAP, and present fairly
the consolidated financial condition of the Borrower and its Subsidiaries as at
December 31, 2000 and the results of their operations for the Fiscal Year then
ended, and no change has occurred in the Borrower's financial condition since
December 31, 2000 that might reasonably be expected to materially adversely
affect its ability to perform the Obligations.
SECTION 6.7. NO DEFAULTS UNDER MATERIAL AGREEMENTS. Neither the
Borrower nor any Principal Subsidiary is in default (a) under any material
agreement by which it is bound or (b) in respect of any financial commitment or
actual or contingent obligation (including obligations under guarantees),
except, in each case, to the extent that such default would not have a Material
Adverse Effect.
SECTION 6.8. NO DEFAULT, EVENT OF DEFAULT OR PREPAYMENT EVENT. No
Default, Event of Default or Prepayment Event has occurred and is continuing.
SECTION 6.9. LITIGATION. Except as set forth in filings made by the
Borrower with the Securities and Exchange Commission, there is no pending or, to
the knowledge of the Borrower, threatened litigation, action or proceeding
against the Borrower or any Principal Subsidiary, or any of the properties,
businesses, assets or revenues of the Borrower or any Principal Subsidiary,
which (in the reasonable opinion of the Borrower) might reasonably be expected
to materially adversely affect the financial condition of the Borrower and the
Principal Subsidiaries, taken as a whole (collectively, "MATERIAL LITIGATION").
SECTION 6.10. VESSELS. Each Vessel is
(a) legally and beneficially owned by the Borrower or a
Principal Subsidiary,
(b) registered in the name of the Borrower or such Principal
Subsidiary under the flag identified in ITEM 6.10(B) of the Disclosure
Schedule,
(c) classed as required by SECTION 7.1.4(B),
(d) free of all recorded Liens, other than liens permitted by
SECTION 7.2.3,
(e) insured against loss or damage in compliance with SECTION
7.1.5, and
(f) chartered exclusively to the Borrower or one of the
Borrower's wholly-owned Subsidiaries.
SECTION 6.11. SUBSIDIARIES. The Borrower has no Subsidiaries on the
Closing Date, except those Subsidiaries which are identified in ITEM 6.11 of the
Disclosure Schedule. All Existing Principal Subsidiaries are designated with an
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asterisk in ITEM 6.11 of the Disclosure Schedule. All Existing Principal
Subsidiaries are direct or indirect wholly-owned Subsidiaries of the Borrower,
except to the extent any such Existing Principal Subsidiary or an interest
therein has been sold in accordance with CLAUSE (B) of SECTION 7.2.7 or such
Existing Principal Subsidiary no longer owns a Vessel.
SECTION 6.12. OBLIGATIONS RANK PARI PASSU. The Obligations rank at
least PARI PASSU in right of payment and in all other respects with all other
unsecured unsubordinated Indebtedness of the Borrower.
SECTION 6.13. WITHHOLDING, ETC. As of the Closing Date, no payment
to be made by the Borrower under any Loan Document is subject to any withholding
or like tax imposed by any Applicable Jurisdiction.
SECTION 6.14. NO FILING, ETC, REQUIRED. No filing, recording or
registration and no payment of any stamp, registration or similar tax is
necessary under the laws of any Applicable Jurisdiction to ensure the legality,
validity, enforceability, priority or admissibility in evidence of this
Agreement or the other Loan Documents (except for filings, recordings,
registrations or payments not required to be made on or prior to the Closing
Date that have been made).
SECTION 6.15. NO IMMUNITY. The Borrower is subject to civil and
commercial law with respect to the Obligations. Neither the Borrower nor any of
its properties or revenues is entitled to any right of immunity in any
Applicable Jurisdiction from suit, court jurisdiction, judgment, attachment
(whether before or after judgment), set-off or execution of a judgment or from
any other legal process or remedy relating to the Obligations (to the extent
such suit, court jurisdiction, judgment, attachment, set-off, execution, legal
process or remedy would otherwise be permitted or exist).
SECTION 6.16. PENSION PLANS. To the extent that, at any time after
the Effective Date, there are any Pension Plans, no steps will have been taken
to terminate any Pension Plan, and no contribution failure will have occurred
with respect to any Pension Plan, in each case which could (a) give rise to a
Lien under section 302 (f) of ERISA and (b) result in the incurrence by the
Borrower or any member of the Controlled Group of any material liability, fine
or penalty.
SECTION 6.17. INVESTMENT COMPANY ACT. Neither the Borrower nor any
of its Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940.
SECTION 6.18. REGULATION U. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Loans will be used for a purpose which violates,
or would be inconsistent with, F.R.S. Board Regulation U. Terms for which
meanings are provided in F.R.S. Board Regulation U or any regulations
substituted therefor, as from time to time in effect, are used in this Section
with such meanings.
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SECTION 6.19. ACCURACY OF INFORMATION. The financial and other
information furnished to the Administrative Agent and the Lenders in writing by
or on behalf of the Borrower by its chief financial officer, treasurer or
corporate controller in connection with the negotiation of this Agreement is, to
the best knowledge and belief of the Borrower, true and correct and contains no
misstatement of a fact of a material nature (provided that all projections and
other forward-looking information is based on the Borrower's best good faith
estimates). All financial and other information furnished to the Administrative
Agent and the Lenders in writing by or on behalf of the Borrower by its chief
financial officer, treasurer or corporate controller after the date of this
Agreement shall have been prepared by the Borrower in good faith.
ARTICLE VII
COVENANTS
SECTION 7.1. AFFIRMATIVE COVENANTS. The Borrower agrees with the
Administrative Agent and each Lender that, until all Commitments have terminated
and all Obligations have been paid in full, the Borrower will perform the
obligations set forth in this SECTION 7.1.
SECTION 7.1.1. FINANCIAL INFORMATION, REPORTS, NOTICES, ETC. The
Borrower will furnish, or will cause to be furnished, to the Administrative
Agent (with sufficient copies for distribution to each Lender) the following
financial statements, reports, notices and information:
(a) as soon as available and in any event within 60 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year
of the Borrower, a copy of the Borrower's report on Form 6-K (or any
successor form) as filed by the Borrower with the Securities and
Exchange Commission for such Fiscal Quarter, containing unaudited
consolidated financial statements of the Borrower for such Fiscal
Quarter (including a balance sheet and profit and loss statement)
prepared in accordance with GAAP, subject to normal year-end audit
adjustments;
(b) as soon as available and in any event within 120 days
after the end of each Fiscal Year of the Borrower, a copy of the
Borrower's annual report on Form 20-F (or any successor form) as filed
by the Borrower with the Securities and Exchange Commission for such
Fiscal Year, containing audited consolidated financial statements of
the Borrower for such Fiscal Year prepared in accordance with GAAP
(including a balance sheet and profit and loss statement) and audited
by PricewaterhouseCoopers LLP or another firm of independent public
accountants of similar standing;
(c) together with each of the statements delivered pursuant to
the foregoing clause (a) or (b), a certificate, executed by the chief
financial officer, the treasurer or the corporate controller of the
Borrower, showing, as of the last day of the relevant Fiscal Quarter or
Fiscal Year (a) compliance with the covenants set forth in SECTION
7.2.4 (in reasonable detail and with appropriate calculations and
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computations in all respects reasonably satisfactory to the
Administrative Agent) and (b) any material changes to ITEM 6.11 of the
Disclosure Schedule since the Closing Date or the last such certificate
delivered pursuant to this clause (as the case may be);
(d) as soon as possible after the occurrence of a Default or
Prepayment Event, a statement of the chief financial officer of the
Borrower setting forth details of such Default or Prepayment Event (as
the case may be) and the action which the Borrower has taken and
proposes to take with respect thereto;
(e) as soon as the Borrower becomes aware thereof, notice of
any Material Litigation;
(f) as soon as the Borrower becomes aware thereof, notice of
any event which, in its reasonable opinion, might have a material
adverse effect on the Borrower's ability to (i) pay when due principal
of or interest on the Loans or other amounts payable by the Borrower
hereunder or (ii) perform its other obligations hereunder and under the
other Loan Documents;
(g) promptly after the sending or filing thereof, copies of
all reports which the Borrower sends to all holders of each security
issued by the Borrower, and all registration statements which the
Borrower or any of its Subsidiaries files with the Securities and
Exchange Commission or any national securities exchange; and
(h) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of its
Subsidiaries as any Lender through the Administrative Agent may from
time to time reasonably request.
SECTION 7.1.2. APPROVALS AND OTHER CONSENTS. The Borrower will
obtain (or cause to be obtained) all such governmental licenses, authorizations,
consents, permits and approvals as may be required for (a) the Borrower to
perform its obligations under this Agreement and the other Loan Documents and
(b) the operation of each Vessel in compliance with all applicable laws.
SECTION 7.1.3. COMPLIANCE WITH LAWS, ETC. The Borrower will, and
will cause each of its Subsidiaries to, comply in all material respects with all
applicable laws, rules, regulations and orders, except to the extent that the
failure to so comply would not have a Material Adverse Effect, which compliance
shall in any case include (but not be limited to):
(a) in the case of each of the Borrower and the Principal
Subsidiaries, the maintenance and preservation of its corporate
existence (subject to the provisions of SECTION 7.2.6);
(b) in the case of the Borrower, maintenance of its
qualification as a foreign corporation in the State of Florida, except
to the extent that the failure to so qualify would not have a Material
Adverse Effect;
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(c) the payment, before the same become delinquent, of all
taxes, assessments and governmental charges imposed upon it or upon its
property if the failure to pay the same would have a Material Adverse
Effect, except to the extent being diligently contested in good faith
by appropriate proceedings; and
(d) compliance with all applicable Environmental Laws, except
to the extent that the failure to so comply would not have a Material
Adverse Effect.
SECTION 7.1.4. VESSELS. The Borrower will (or will cause the
applicable Principal Subsidiary to):
(a) cause each Vessel to be chartered exclusively to the
Borrower or one of the Borrower's wholly-owned Subsidiaries, PROVIDED
that the Borrower or such Subsidiary may charter out any Vessel on a
time charter with a stated duration not in excess of one year; and
(b) cause each Vessel to be kept in such condition as will
entitle her to classification by a classification society of recognized
standing.
SECTION 7.1.5. INSURANCE. The Borrower will, or will cause one or
more of its Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies insurance with respect to all of the material properties and
operations of the Borrower and each Principal Subsidiary against such
casualties, third-party liabilities and contingencies and in such amounts as is
customary for other businesses of similar size in the passenger cruise line
industry (PROVIDED that in no event will the Borrower or any Principal
Subsidiary be required to obtain any business interruption, loss of hire or
delay in delivery insurance) and will, upon request of the Administrative Agent,
furnish to the Administrative Agent (with sufficient copies for distribution to
each Lender) at reasonable intervals a certificate of a senior officer of the
Borrower setting forth the nature and extent of all insurance maintained by the
Borrower and the Principal Subsidiaries and certifying as to compliance with
this Section.
SECTION 7.1.6. BOOKS AND RECORDS. The Borrower will, and will cause
each of its Principal Subsidiaries to, keep books and records that accurately
reflect all of its business affairs and transactions and permit the
Administrative Agent and each Lender or any of their respective representatives,
at reasonable times and intervals, to visit each of its offices, to discuss its
financial matters with its officers and to examine any of its books or other
corporate records.
SECTION 7.2. NEGATIVE COVENANTS. The Borrower agrees with the
Administrative Agent and each Lender that, until all Commitments have terminated
and all Obligations have been paid and performed in full, the Borrower will
perform the obligations set forth in this SECTION 7.2.
SECTION 7.2.1. BUSINESS ACTIVITIES. The Borrower will not, and will
not permit any of its Subsidiaries to, engage in any business activity other
than those engaged in by the Borrower and its Subsidiaries on the date hereof
and other business activities reasonably related thereto.
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SECTION 7.2.2. INDEBTEDNESS. The Borrower will not permit any of the
Existing Principal Subsidiaries to create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness secured by Liens of the type described in
CLAUSES (A), (B), (C), (D), (E) and (F) of SECTION 7.2.3; and
(b) Indebtedness owing to the Borrower.
SECTION 7.2.3. LIENS. The Borrower will not, and will not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon
any of its property, revenues or assets, whether now owned or hereafter
acquired, except:
(a) Liens on the vessels SPLENDOUR of THE SEAS, LEGEND of THE
SEAS, CENTURY, GALAXY and ZENITH existing as of the Effective Date and
securing the Existing Debt (and any Lien on SPLENDOUR OF THE SEAS,
LEGEND OF THE SEAS, CENTURY, GALAXY or ZENITH, securing any refinancing
of the Existing Debt, so long as the relevant Vessel was subject to a
Lien securing the Indebtedness being refinanced immediately prior to
such refinancing);
(b) Liens on assets (including, without limitation, shares of
capital stock of corporations and assets owned by any corporation that
becomes a Subsidiary of the Borrower after the Effective Date) acquired
after the Effective Date (whether by purchase, construction or
otherwise) by the Borrower or any of its Subsidiaries (other than (x)
an Existing Principal Subsidiary or (y) any other Principal Subsidiary
which, at any time, owns a Vessel free of any mortgage Lien), which
Liens were created solely for the purpose of securing Indebtedness
representing, or incurred to finance, refinance or refund, the cost
(including the cost of construction) of such assets, so long as (i) the
acquisition of such assets is not otherwise prohibited by the terms of
this Agreement and (ii) each such Lien is created within three months
after the acquisition of the relevant assets;
(c) in addition to other Liens permitted under this SECTION
7.2.3, Liens securing Indebtedness in an aggregate principal amount at
any one time outstanding not exceeding the greater of (a) 3.5% of total
assets of the Borrower and its Subsidiaries as determined in accordance
with GAAP as at the last day of the most recent ended Fiscal Quarter or
(b) $225,000,000, provided that, with respect to each such item of
Indebtedness, the fair market value of the assets subject to Liens
securing such Indebtedness (determined at the time of the creation of
such Lien) shall not exceed two times the aggregate principal amount of
such Indebtedness (and for purposes of this clause (c), the fair market
value of any assets shall be determined by (i) in the case of any
Vessel, by an Approved Appraiser selected by the Borrower and (ii) in
the case of any other assets, by an officer of the Borrower or by the
board of directors of the Borrower);
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(d) Liens on assets acquired after the Effective Date by the
Borrower or any of its Subsidiaries (other than by (x) any Subsidiary
that is an Existing Principal Subsidiary or (y) any other Principal
Subsidiary which, at any time, owns a Vessel free of any mortgage Lien)
so long as (i) the acquisition of such assets is not otherwise
prohibited by the terms of this Agreement and (ii) each of such Liens
existed on such assets before the time of its acquisition and was not
created by the Borrower or any of its Subsidiaries in anticipation
thereof;
(e) Liens on any asset of any corporation that becomes a
Subsidiary of the Borrower (other than a corporation that also becomes
a Subsidiary of an Existing Principal Subsidiary) after the Effective
Date so long as (i) the acquisition or creation of such corporation by
the Borrower is not otherwise prohibited by the terms of this Agreement
and (ii) such Liens are in existence at the time such corporation
becomes a Subsidiary of the Borrower and were not created by the
Borrower or any of its Subsidiaries in anticipation thereof;
(f) Liens securing Government-related Obligations;
(g) Liens for taxes, assessments or other governmental charges
or levies not at the time delinquent or thereafter payable without
penalty or being diligently contested in good faith by appropriate
proceedings;
(h) Liens of carriers, warehousemen, mechanics, materialmen
and landlords incurred in the ordinary course of business for sums not
overdue or being diligently contested in good faith by appropriate
proceedings;
(i) Liens incurred in the ordinary course of business in
connection with workers' compensation, unemployment insurance or other
forms of governmental insurance or benefits;
(j) Liens for current crew's wages and salvage;
(k) Liens arising by operation of law as the result of the
furnishing of necessaries for any Vessel so long as the same are
discharged in the ordinary course of business or are being diligently
contested in good faith by appropriate proceedings; and
(l) Liens on Vessels that:
(i) secure obligations covered (or reasonably
expected to be covered) by insurance;
(ii) were incurred in the course of or incidental to
trading such Vessel in connection with repairs or other work
to such Vessel; or
(iii) were incurred in connection with work to such
Vessel that is required to be performed pursuant to applicable
law, rule, regulation or order;
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PROVIDED that, in each case described in this CLAUSE (1), such Liens
are either (x) discharged in the ordinary course of business or (y)
being diligently contested in good faith by appropriate proceedings.
SECTION 7.2.4. FINANCIAL CONDITION. The Borrower will not permit:
(a) Total Debt to Capitalization Ratio, as at the end of any
Fiscal Quarter, to be greater than 0.625 to 1.00.
(b) Fixed Charge Coverage Ratio to be less than 1.25 to 1.00
as at the last day of any Fiscal Quarter.
(c) Stockholders' Equity to be less than the sum of (i)
$2,000,000,000 PLUS (ii) 50% of the cumulative consolidated net income
of the Borrower and its Subsidiaries for the period commencing on April
1, 2000 and ending on the last day of the Fiscal Quarter most recently
ended (treated for these purposes as a single accounting period, but in
any event excluding any Fiscal Quarters for which the Borrower and its
Subsidiaries have a consolidated net loss).
SECTION 7.2.5. INVESTMENTS. The Borrower will not permit any of the
Principal Subsidiaries to make, incur, assume or suffer to exist any Investment
in any other Person.
SECTION 7.2.6. CONSOLIDATION, MERGER, ETC. The Borrower will not,
and will not permit any of its Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any other corporation, or purchase or
otherwise acquire all or substantially all of the assets of any Person except:
(a) any such Subsidiary may liquidate or dissolve voluntarily
into, and may merge with and into, the Borrower or any other
Subsidiary, and the assets or stock of any Subsidiary may be purchased
or otherwise acquired by the Borrower or any other Subsidiary; and
(b) so long as no Default has occurred and is continuing or
would occur after giving effect thereto, the Borrower or any of its
Subsidiaries, may merge into any other Person, or any other Person may
merge into the Borrower or any such Subsidiary, or the Borrower or any
of its Subsidiaries may purchase or otherwise acquire all or
substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders'
Equity of the Borrower and its Subsidiaries is at least equal
to 90% of such Stockholders' Equity immediately prior thereto;
and
(ii) in the case of a merger involving the Borrower
where the Borrower is not the surviving corporation, the
surviving corporation shall have assumed in a writing,
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delivered to the Administrative Agent, all of the Borrower's
obligations hereunder and under the other Loan Documents.
SECTION 7.2.7. ASSET DISPOSITIONS, ETC. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, transfer, contribute or
otherwise convey, or grant options, warrants or other rights with respect to,
any material asset (including accounts receivable and capital stock of Principal
Subsidiaries) to any Person, except:
(a) sales of assets (including, without limitation, Vessels)
so long as:
(i) the aggregate net book value of all such assets
sold during each 12-month period commencing on the June 9,
2000, and each anniversary of the Closing Date, does not
exceed an amount equal to the greater of (x) 7.5% of
Stockholders' Equity as at the last day of the most recent
ended fiscal quarter or (y) $250,000,000; and
(ii) the Borrower or Subsidiary selling such asset
receives consideration therefor at least equal to the fair
market value thereof (as determined in good faith by (x) in
the case of any Vessel, the board of directors of the Borrower
and (y) in the case of any other asset, an officer of the
Borrower or its board of directors);
(b) sales of capital stock of any Principal Subsidiary of the
Borrower so long as a sale of all of the assets of such Subsidiary
would be permitted under the foregoing CLAUSE (A);
(c) sales of capital stock of any Subsidiary other than a
Principal Subsidiary; and
(d) sales of other assets in the ordinary course of business.
SECTION 7.2.8. TRANSACTIONS WITH AFFILIATES. The Borrower will not,
and will not permit any of the Principal Subsidiaries to, enter into, or cause,
suffer or permit to exist any arrangement or contract with any of its Affiliates
(other than arrangements or contracts among the Borrower and its wholly-owned
Subsidiaries) unless such arrangement or contract is on an arms-length basis,
PROVIDED that, to the extent that the aggregate fair value of the goods
furnished or to be furnished or the services performed or to be performed under
all such contracts or arrangements in any one Fiscal Year does not exceed
$5,000,000, such contracts or arrangements shall not be subject to this SECTION
7.2.8.
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ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. LISTING OF EVENTS OF DEFAULT. Each of the following events
or occurrences described in this Section 8.1 shall constitute an "EVENT OF
DEFAULT".
SECTION 8.1.1. NON-PAYMENT OF OBLIGATIONS. The Borrower shall default
in the payment when due of any principal of or interest on any Loan, any Unused
Fee or the agency fee provided for in SECTION 10.7, PROVIDED that, in the case
of any default in the payment of any interest on any Loan or of any Unused Fee,
such default shall continue unremedied for a period of at least two Business
Days after notice thereof shall have been given to the Borrower by any Lender;
and PROVIDED FURTHER that, in the case of any default in the payment of such
agency fee, such default shall continue unremedied for a period of at least ten
days after notice thereof shall have been given to the Borrower by the
Administrative Agent.
SECTION 8.1.2. BREACH OF WARRANTY. Any representation or warranty of
the Borrower made or deemed to be made hereunder (including any certificates
delivered pursuant to ARTICLE V) is or shall be incorrect when made in any
material respect and such incorrectness shall continue unremedied for at least
five Business Days after notice thereof shall have been given to the Borrower by
the Administrative Agent or any Lender (or if (a) such incorrectness is capable
of being remedied within 15 days (commencing on the first day of such
five-Business-Day period) and (b) the Borrower is actively seeking to remedy the
same during such period, such incorrectness shall continue unremedied for at
least 15 days).
SECTION 8.1.3. NON-PERFORMANCE OF CERTAIN COVENANTS AND OBLIGATIONS.
The Borrower shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document (other than the
covenants set forth in SECTION 7.2.4) and such default shall continue unremedied
for a period of five days after notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender (or, if (a) such default is
capable of being remedied within 30 days (commencing on the first day following
such five-day period) and (b) the Borrower is actively seeking to remedy the
same during such period, such default shall continue unremedied for at least 35
days after such notice to the Borrower).
SECTION 8.1.4. DEFAULT ON OTHER INDEBTEDNESS. Any of the following
shall occur:
(a) any Indebtedness of the Borrower or any Principal
Subsidiary aggregating $50,000,000 or more (or the equivalent in other
currencies) shall have become due, or be required to be prepaid in full
(whether by redemption, purchase, offer to purchase or otherwise) prior
to its stated maturity, and is then due and payable; or
(b) the Borrower or any Principal Subsidiary shall default in
the payment when due (after giving effect to any applicable grace
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period) of any principal of or interest on any Indebtedness aggregating
$50,000,000 or more (or the equivalent in other currencies); or
(c) any holder or holders of any Indebtedness of the Borrower
or any Principal Subsidiary aggregating $50,000,000 or more (or the
equivalent in other currencies), or any agent acting on their behalf,
shall take any action to realize on any collateral security for such
Indebtedness as a result of any event of default under such
Indebtedness;
and, in each such case, such event shall continue unremedied for a period of
five Business Days (or, if (a) such default is capable of being remedied within
15 days (commencing on the first day of such five-Business-Day period) and (b)
the Borrower is actively seeking to remedy the same during such period, such
default shall continue unremedied for at least 15 days).
SECTION 8.1.5. PENSION PLANS. Any of the following events shall occur
with respect to any Pension Plan:
(a) the institution of any steps by the Borrower, any member
of its Controlled Group or any other Person to terminate a Pension Plan
if, as a result of such termination, the Borrower or any such member
could be required to make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to such Pension
Plan, in excess of $50,000,000; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under Section 302(f) of ERISA
and, in each case, such event shall continue unremedied for a period of five
Business Days after notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender (or, if (a) such default is capable of being
remedied within 15 days (commencing on the first day of such five-Business-Day
period) and (b) the Borrower is actively seeking to remedy the same during such
period, such default shall continue unremedied for at least 15 days).
SECTION 8.1.6. BANKRUPTCY, INSOLVENCY, ETC. The Borrower or any of
the Principal Subsidiaries (or any of its other Subsidiaries to the extent that
the relevant event described below would have a Material Adverse Effect) shall:
(a) become insolvent or generally fail to pay, or admit in
writing its inability to pay, its debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of
a trustee, receiver, sequestrator or other custodian for it or any of
its property, or make a general assignment for the benefit of
creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for it or for a substantial
part of its property, and such trustee, receiver, sequestrator or other
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custodian shall not be discharged within 30 days, provided that the
Borrower hereby expressly authorizes the Administrative Agent and each
Lender to appear in any court conducting any relevant proceeding during
such 30-day period to preserve, protect and defend their respective
rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of the Borrower or any
of such Subsidiaries, and, if any such case or proceeding is not
commenced by the Borrower or such Subsidiary, such case or proceeding
shall be consented to or acquiesced in by the Borrower or such
Subsidiary or shall result in the entry of an order for relief or shall
remain for 30 days undismissed, provided that the Borrower hereby
expressly authorizes the Administrative Agent and each Lender to appear
in any court conducting any such case or proceeding during such 30-day
period to preserve, protect and defend their respective rights under
the Loan Documents; or
(e) take any corporate action authorizing, or in furtherance
of, any of the foregoing.
SECTION 8.1.7. OWNERSHIP OF PRINCIPAL SUBSIDIARIES. Except as a
result of a disposition permitted pursuant to clause (b) of SECTION 7.2.7, the
Borrower shall cease to own beneficially and of record all of the capital stock
of each Existing Principal Subsidiary.
SECTION 8.2. ACTION IF BANKRUPTCY. If any Event of Default
described in clauses (a) through (d) of SECTION 8.1.6 shall occur with respect
to the Borrower, the Commitments (if not theretofore terminated) shall
automatically terminate and the outstanding principal amount of all outstanding
Loans and all other Obligations shall automatically be and become immediately
due and payable, without notice or demand.
SECTION 8.3. ACTION IF OTHER EVENT OF DEFAULT. If any Event of
Default (other than any Event of Default described in clauses (a) through (d) of
SECTION 8.1.6 with respect to the Borrower) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative Agent, upon the
direction of the Required Lenders, shall by notice to the Borrower declare all
of the outstanding principal amount of the Loans and other Obligations to be due
and payable and/or the Commitments (if not theretofore terminated) to be
terminated, whereupon the full unpaid amount of such Loans and other Obligations
shall be and become immediately due and payable, without further notice, demand
or presentment, and/or, as the case may be, the Commitments shall terminate.
ARTICLE IX
PREPAYMENT EVENTS
SECTION 9.1. LISTING OF PREPAYMENT EVENTS. Each of the following events
or occurrences described in this SECTION 9.1 shall constitute a "Prepayment
Event".
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SECTION 9.1.1. CHANGE IN OWNERSHIP. Any Person other than a member
of the Existing Group (a "New Shareholder") shall acquire (whether through legal
or beneficial ownership of capital stock, by contract or otherwise), directly or
indirectly, effective control over more than 30% of the Voting Stock and:
(a) the members of the Existing Group have (whether through
legal or beneficial ownership of capital stock, by contract or
otherwise) in the aggregate, directly or indirectly, effective control
over fewer shares of Voting Stock than does such New Shareholder; and
(b) the members of the Existing Group do not collectively have
(whether through legal or beneficial ownership of capital stock, by
contract or otherwise) the right to elect, or to designate for
election, at least a majority of the Board of Directors of the
Borrower.
SECTION 9.1.2. CHANGE IN BOARD. During any period of 24 consecutive
months, a majority of the Board of Directors of the Borrower shall no longer be
composed of individuals:
(a) who were members of said Board on the first day of such
period; or
(b) whose election or nomination to said Board was approved by
a vote of at least two-thirds of the members of said Board who were
members of said Board on the first day of such period; or
(c) whose election or nomination to said Board was approved by
a vote of at least two-thirds of the members of said Board referred to
in the foregoing CLAUSES (A) and (B).
SECTION 9.1.3. UNENFORCEABILITY. Any Loan Document shall cease to be
the legally valid, binding and enforceable obligations of the Borrower (in each
case, other than with respect to provisions of any Loan Document (i) identified
as unenforceable in the form of the opinion of the Borrower's counsel set forth
as EXHIBIT D-1 or (ii) that a court of competent jurisdiction has determined are
not material) and such event shall continue unremedied for 15 days after notice
thereof has been given to the Borrower by any Lender.
SECTION 9.1.4. APPROVALS. Any material license, consent,
authorization, registration or approval at any time necessary to enable the
Borrower or any Principal Subsidiary to conduct its business shall be revoked,
withdrawn or otherwise cease to be in full force and effect, unless the same
would not have a Material Adverse Effect.
SECTION 9.1.5. NON-PERFORMANCE OF CERTAIN COVENANTS AND OBLIGATIONS.
The Borrower shall default in the due performance and observance of any of the
covenants set forth in SECTION 7.2.4 and such default shall continue unremedied
for a period of 30 days after notice thereof shall have been given to the
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Borrower by the Administrative Agent, and the Required Lenders fail to agree
with the Borrower within that 30-day period on a proposal (to be made by the
Borrower) for the remedy of such default within a period and on such terms as
are acceptable to the Required Lenders.
SECTION 9.1.6. JUDGMENTS. Any judgment or order for the payment of
money in excess of $25,000,000 shall be rendered against the Borrower or any of
the Principal Subsidiaries by a court of competent jurisdiction and the Borrower
or such Principal Subsidiary shall have failed to satisfy such judgment and
either:
(a) enforcement proceedings in respect of any material assets
of the Borrower or such Principal Subsidiary shall have been commenced
by any creditor upon such judgment or order and shall not have been
stayed or enjoined within five Business Days after the commencement of
such enforcement proceedings; or
(b) there shall be any period of 10 consecutive Business Days
during which a stay of enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect.
SECTION 9.1.7. CONDEMNATION, ETC. Any Vessel or Vessels shall be
condemned or otherwise taken under color of law and the same shall continue
unremedied for at least 20 days, unless such condemnation or other taking would
not have a Material Adverse Effect.
SECTION 9.1.8. ARREST. Any Vessel or Vessels shall be arrested and
the same shall continue unremedied for at least 20 days, unless such arrest
would not have a Material Adverse Effect.
SECTION 9.2. MANDATORY PREPAYMENT. If any Prepayment Event shall
occur and be continuing, the Administrative Agent, upon direction of the
Required Lenders, shall by notice to the Borrower (a) require the Borrower to
prepay in full on the date of such notice all principal of and interest on the
Loans and all other Obligations (and, in such event, the Borrower agrees to so
pay the full unpaid amount of each Loan and all accrued and unpaid interest
thereon and all other Obligations) and (b) terminate the Commitments (if the
Advance Date shall not then have passed).
ARTICLE X
THE AGENT
SECTION 10.1. ACTIONS. Each Lender hereby appoints Bank of America
as its agent under and for purposes of this Agreement, the Term Notes and each
other Loan Document. Each Lender authorizes the Administrative Agent to act on
behalf of such Lender under this Agreement, the Term Notes and each other Loan
Document and, in the absence of other written instructions from the Required
Lenders received from time to time by the Administrative Agent (with respect to
which the Administrative Agent agrees that it will comply, except as otherwise
provided in this Section or as otherwise advised by counsel), to exercise such
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powers hereunder and thereunder as are specifically delegated to or required of
the Administrative Agent by the terms hereof and thereof, together with such
powers as may be reasonably incidental thereto. Each Lender hereby indemnifies
(which indemnity shall survive any termination of this Agreement) the
Administrative Agent, PRO RATA according to such Lender's Percentage, from and
against any and all liabilities, obligations, losses, damages, claims, costs or
expenses of any kind or nature whatsoever which may at any time be imposed on,
incurred by, or asserted against, the Administrative Agent in any way relating
to or arising out of this Agreement, the Term Notes and any other Loan Document,
including reasonable attorneys' fees (to the extent that the Borrower is
required to reimburse the Administrative Agent therefor, but does not do so),
and as to which the Administrative Agent is not reimbursed by the Borrower;
PROVIDED that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, claims, costs or expenses which have
resulted from the Administrative Agent's gross negligence or willful misconduct.
The Administrative Agent shall not be required to take any action hereunder,
under the Term Notes or under any other Loan Document, or to prosecute or defend
any suit in respect of this Agreement, the Term Notes or any other Loan
Document, unless it is expressly required to do so under this Agreement or is
indemnified hereunder to its satisfaction. If any indemnity in favor of the
Administrative Agent shall be or become, in the Administrative Agent's
determination, inadequate, the Administrative Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
SECTION 10.2. EXCULPATION. Neither the Administrative Agent nor any
of its directors, officers, employees or agents shall be liable to any Lender
for any action taken or omitted to be taken by it under this Agreement or any
other Loan Document, or in connection herewith or therewith, except for its own
willful misconduct or gross negligence, nor responsible for any recitals or
warranties herein or therein, nor for the effectiveness, enforceability,
validity or due execution of this Agreement or any other Loan Document, nor to
make any inquiry respecting the performance by the Borrower of its obligations
hereunder or under any other Loan Document. Any such inquiry which may be made
by the Administrative Agent shall not obligate it to make any further inquiry or
to take any action. The Administrative Agent shall be entitled to rely upon
advice of counsel concerning legal matters and upon any notice, consent,
certificate, statement or writing which the Administrative Agent believes to be
genuine and to have been presented by a proper Person.
SECTION 10.3. SUCCESSOR. The Administrative Agent may resign as
such at any time upon at least 30 days' prior notice to the Borrower and all
Lenders, provided that any such resignation shall not become effective until a
successor Administrative Agent has been appointed as provided in this SECTION
10.3 and such successor Administrative Agent has accepted such appointment. If
the Administrative Agent at any time shall resign, the Required Lenders shall,
subject to the consent of the Borrower (such consent not to be unreasonably
withheld), appoint another Lender as a successor to the Administrative Agent
which shall thereupon become such Administrative Agent's successor hereunder
(provided that the Required Lenders shall, subject to the consent of the
Borrower (such consent not to be unreasonably withheld) offer to each of the
other Lenders, in the order of their respective Commitment Amounts, the right to
become successor Administrative Agent). If no successor Administrative Agent
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shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after the Administrative Agent's giving notice
of resignation, then the Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be one of the Lenders or a
commercial banking institution having a combined capital and surplus of at least
$500,000,000 (or the equivalent in other currencies), subject, in each case, to
the consent of the Borrower (such consent not to be unreasonably withheld);
provided, however, that if a Default, Event of Default or Prepayment Event has
occurred and is continuing no consent of the Borrower shall be required if the
successor Administrative Agent is an existing Lender. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from the
resigning Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the resigning Administrative Agent, and the resigning Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
resigning Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of:
(a) this ARTICLE X shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement; and
(b) SECTION 11.3 and SECTION 11.4 shall continue to inure to
its benefit.
If a Lender acting as an Administrative Agent assigns its Loans to one of its
Affiliates, the Administrative Agent may, subject to the consent of the Borrower
(such consent not to be unreasonably withheld) assign its rights and obligations
as Administrative Agent to such Affiliate.
SECTION 10.4. LOANS BY THE ADMINISTRATIVE AGENT. The Administrative
Agent shall have the same rights and powers with respect to (x) the Loans made
by it or any of its Affiliates, and (y) the Term Notes held by it or any of its
Affiliates as any other Lender and may exercise the same as if it were not the
Administrative Agent. The Administrative Agent and its Affiliates may accept
deposits from, lend money to, and generally engage in any kind of business with
the Borrower or any Subsidiary or Affiliate of the Borrower as if the
Administrative Agent were not the Administrative Agent hereunder.
SECTION 10.5. CREDIT DECISIONS. Each Lender acknowledges that it
has, independently of the Administrative Agent and each other Lender, and based
on such Lender's review of the financial information of the Borrower, this
Agreement, the other Loan Documents (the terms and provisions of which being
satisfactory to such Lender) and such other documents, information and
investigations as such Lender has deemed appropriate, made its own credit
decision to extend its Commitment. Each Lender also acknowledges that it will,
independently of the Administrative Agent and each other Lender, and based on
such other documents, information and investigations as it shall deem
appropriate at any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and privileges
available to it under this Agreement or any other Loan Document.
SECTION 10.6. COPIES, ETC. The Administrative Agent shall give
prompt notice to each Lender of each notice or request required or permitted to
be given to the Administrative Agent by the Borrower pursuant to the terms of
this Agreement (unless concurrently delivered to the Lenders by the Borrower).
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The Administrative Agent will distribute to each Lender each document or
instrument received for its account and copies of all other communications
received by the Administrative Agent from the Borrower for distribution to the
Lenders by the Administrative Agent in accordance with the terms of this
Agreement.
SECTION 10.7. AGENCY FEE. The Borrower agrees to pay to the
Administrative Agent for its own account an annual agency fee in an amount, and
at such times, heretofore agreed to in writing between the Borrower and the
Administrative Agent.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. WAIVERS, AMENDMENTS, ETC. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrower and the Required Lenders; provided that no such
amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular
action be taken by all the Lenders or by the Required Lenders shall be
effective unless consented to by each Lender;
(b) modify this SECTION 11.1, change the definition "Required
Lenders", increase the Commitment Amount or the Percentage of any
Lender, reduce any fees described in ARTICLE III or extend the
Commitment Termination Date shall be made without the consent of each
Lender;
(c) extend the due date for, or reduce the amount of, any
scheduled repayment or prepayment of principal of or interest on any
Loan (or reduce the principal amount of or rate of interest on any
Loan) shall be made without the consent of each Lender; or
(d) affect adversely the interests, rights or obligations of
the Administrative Agent in its capacity as such shall be made without
consent of the Administrative Agent.
No failure or delay on the part of the Administrative Agent or any Lender in
exercising any power or right under this Agreement or any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand on the Borrower in
any case shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by the Administrative Agent or any Lender
under this Agreement or any other Loan Document shall, except as may be
otherwise stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.
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SECTION 11.2. NOTICES. All notices and other communications
provided to any party hereto under this Agreement or any other Loan Document
shall be in writing or by facsimile and addressed, delivered or transmitted to
such party at its address or facsimile number set forth below its signature
hereto or set forth in the Lender Assignment Agreement or at such other address
or facsimile number as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid or if
properly addressed and sent by pre-paid courier service, shall be deemed given
when received; any notice, if transmitted by facsimile, shall be deemed given
when transmitted.
SECTION 11.3. PAYMENT OF COSTS AND EXPENSES. The Borrower agrees to
pay on demand all reasonable expenses of the Administrative Agent (including the
reasonable fees and out-of-pocket expenses of counsel to the Administrative
Agent and of local counsel, if any, who may be retained by counsel to the
Administrative Agent) in connection with any amendments, waivers, consents,
supplements or other modifications to this Agreement or any other Loan Document
as may from time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated. The Borrower further agrees to pay, and to
save the Administrative Agent and the Lenders harmless from all liability for,
any stamp or other taxes which may be payable in connection with the execution
or delivery of this Agreement, the borrowings hereunder, or the issuance of the
Term Notes or any other Loan Documents. The Borrower also agrees to reimburse
the Administrative Agent and each Lender upon demand for all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and legal expenses)
incurred by the Administrative Agent or such Lender in connection with (x) the
negotiation of any restructuring or "work-out", whether or not consummated, of
any Obligations and (y) the enforcement of any Obligations.
SECTION 11.4. INDEMNIFICATION. In consideration of the execution
and delivery of this Agreement by each Lender and the extension of the
Commitments, the Borrower hereby indemnifies and holds the Administrative Agent
and each Lender and each of their respective Affiliates, officers, directors and
employees (collectively, the "Indemnified Parties") free and harmless from and
against any and all causes of action, suits or other claims that may be asserted
against any Indemnified Party (and all losses, costs, liabilities, damages and
expenses arising or incurred in connection therewith (irrespective of whether
any such Indemnified Party is a party to the action for which indemnification
hereunder is sought), including reasonable attorneys' fees and disbursements
(collectively, the "Indemnified Liabilities")), incurred by the Indemnified
Parties or any of them as a result of, or arising out of, or relating to any of
the Loan Documents or the credit facility provided for herein or any use of the
proceeds of any Loans, except for any such Indemnified Liabilities arising for
the account of a particular Indemnified Party by reason of the relevant
Indemnified Party's gross negligence or willful misconduct. Each Indemnified
Party shall (a) furnish the Borrower with prompt notice of any action, suit or
other claim covered by this SECTION 11.4, (b) at the Borrower's request, give
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the Borrower the right to control (at the Borrower's expense) the defense of any
such action, suit or other claim (PROVIDED that (x) the Borrower shall not
settle or compromise any such action, suit or other claim if the settlement
shall include the admission of any liability or the entry of any judgment
against an Indemnified Party or if such Indemnified Party shall demonstrate to
the reasonable satisfaction of the Borrower that such settlement or compromise
would materially adversely affect such Indemnified Party and (y) the Borrower's
selection of counsel in any such action, suit or claim being controlled by the
Borrower shall be subject to such Indemnified Party's consent, which consent
shall not be unreasonably withheld), (c) not agree to any settlement or
compromise of any such action, suit or claim without the Borrower's prior
consent and (d) shall cooperate fully in the Borrower's defense of any such
action, suit or other claim (provided, that the Borrower shall reimburse such
Indemnified Party for its reasonable out-of-pocket expenses incurred pursuant
hereto). If and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
SECTION 11.5. SURVIVAL. The obligations of the Borrower under
SECTIONS 4.3, 4.4, 4.5, 4.6, 4.7, 11.3 and 11.4, and the obligations of the
Lenders under SECTION 10.1, shall in each case survive any termination of this
Agreement, the payment in full of all Obligations and the termination of all
Commitments. The representations and warranties made by the Borrower in this
Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each such other Loan Document.
SECTION 11.6. SEVERABILITY. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 11.7. HEADINGS. The various headings of this Agreement and
of each other Loan Document are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or such other Loan
Document or any provisions hereof or thereof.
SECTION 11.8. EXECUTION IN COUNTERPARTS. This Agreement may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one and
the same agreement.
SECTION 11.9. GOVERNING LAW: ENTIRE AGREEMENT. THIS AGREEMENT AND
THE TERM NOTES SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER, AND SHALL BE
GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF FLORIDA. This Agreement, the Term
Notes and the other Loan Documents constitute the entire understanding among the
parties hereto with respect to the subject matter hereof and supersede any prior
agreements, written or oral, with respect thereto.
SECTION 11.10. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided that:
(a) except to the extent permitted under SECTION 7.2.6, the
Borrower may not assign or transfer its rights or obligations hereunder
without the prior written consent of the Administrative Agent and all
Lenders; and
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(b) the rights of sale, assignment and transfer of the Lenders
are subject to SECTION 11.11.
SECTION 11.11. SALE AND TRANSFER OF LOANS AND TERM NOTE:
PARTICIPATIONS IN LOANS AND TERM NOTE. Each Lender may assign, or sell
participations in, its Loans and Commitment to one or more other Persons in
accordance with this SECTION 11.11.
SECTION 11.11.1. ASSIGNMENTS. Any Lender,
(i) with the written consents of the Borrower and the
Administrative Agent (which consents shall not be unreasonably delayed
or withheld and which consent, in the case of the Borrower, shall be
deemed to have been given in the absence of a written notice delivered
by the Borrower to the Administrative Agent, on or before the tenth
Business Day after receipt by the Borrower of such Lender's request for
consent, stating, in reasonable detail, the reasons why the Borrower
proposes to withhold such consent) may at any time assign and delegate
to one or more commercial banks or other financial institutions;
(ii) with notice to the Borrower and the Administrative Agent,
but without the consent of the Borrower or the Administrative Agent,
may assign and delegate to any of its Affiliates; and
(iii) may (without notice to the Borrower, the Administrative
Agent or any other Lender and without payment of any fee) assign and
pledge all or any portion of its Loans and Term Note to any Federal
Reserve Bank as collateral security pursuant to Regulation A of the
F.R.S. Board any Operating Circular issued by such Federal Reserve
Bank;
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "ASSIGNEE LENDER"), all or any fraction of such Lender's total Loans and
Commitment (which assignment and delegation shall be of a constant, and not a
varying, percentage of all the assigning Lender's Loans and Commitment) in a
minimum aggregate amount of $25,000,000 (or, if less, all of such Lender's Loans
and Commitment) except, in the case of an increase of the Commitment Amount
pursuant to Section 2.7, a Lender may assign a lesser amount of its Commitment
to an Added Lender so long as its Commitment is not less than $25,000,000 after
giving effect to such assignment; provided that the Borrower and the
Administrative Agent shall be entitled to continue to deal solely and directly
with such Lender in connection with the interests so assigned and delegated to
an Assignee Lender until:
(a) written notice of such assignment and delegation, together
with payment instructions, addresses and related information with
respect to such Assignee Lender, shall have been given to the Borrower
and the Administrative Agent by such Lender and such Assignee Lender;
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(b) Such Assignee Lender shall have executed and delivered to
the Borrower and the Administrative Agent a Lender Assignment
Agreement, accepted by the Administrative Agent; and
(c) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it, shall be released from its obligations
hereunder and under the other Loan Documents, other than any obligations arising
prior to the effective date of such assignment. In no event shall the Borrower
be required to pay to any Assignee Lender at the time of the relevant assignment
any amount under SECTIONS 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the
amount which it would have been required to pay had no such assignment been
made. Within five Business Days after its receipt of notice that the
Administrative Agent has received an executed Lender Assignment Agreement, the
Borrower shall execute and deliver to the Administrative Agent (for delivery to
the relevant Assignee Lender) a new Term Note evidencing such Assignee Lender's
assigned Loans and Commitment and, if the assignor Lender has retained Loans and
a Commitment hereunder, a replacement Term Note in the principal amount of the
Loans and Commitment retained by the assignor Lender hereunder (such Term Note
to be in exchange for, but not in payment of, that Term Note then held by such
assignor Lender). Each such Term Note shall be dated the date of the predecessor
Term Note. The assignor Lender shall ▇▇▇▇ the predecessor Term Note "exchanged"
and deliver it to the Borrower concurrently with the delivery by the Borrower of
the new Term Note(s). Such assignor Lender or such Assignee Lender must also pay
a processing fee to the Administrative Agent upon delivery of any Lender
Assignment Agreement in the amount of $3,500 (and shall also reimburse the
Administrative Agent for any reasonable out-of-pocket costs, including
reasonable attorneys' fees and expenses, incurred in connection with the
assignment).
SECTION 11.11.2. PARTICIPATIONS. Any Lender may at any time sell to
one or more commercial banks or other financial institutions (each of such
commercial banks and other financial institutions being herein called a
"Participant") participating interests in any of its Loans, its Commitment, or
other interests of such Lender hereunder; provided that:
(a) no participation contemplated in this SECTION 11.11 shall
relieve such Lender from its Commitment or its other obligations
hereunder;
(b) such Lender shall remain solely responsible for the
performance of its Commitment and such other obligations;
(c) the Borrower and the Administrative Agent shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and each of the
other Loan Documents;
-51-
(d) no Participant, unless such Participant is an Affiliate of
such Lender, shall be entitled to require such Lender to take or
refrain from taking any action hereunder or under any other Loan
Document, except that such Lender may agree with any Participant that
such Lender will not, without such Participant's consent, take any
actions of the type described in CLAUSE (B) or (C) of SECTION 11.1; and
(e) the Borrower shall not be required to pay any amount under
SECTIONS 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount
which it would have been required to pay had no participating interest
been sold.
The Borrower acknowledges and agrees that each Participant, for purposes of
SECTIONS 4.3, 4.4, 4.5, 4.6 and 4.7 and CLAUSE (H) of 7.1.1, shall be considered
a Lender.
SECTION 11.12. OTHER TRANSACTIONS. Nothing contained herein shall
preclude the Administrative Agent or any Lender from engaging in any
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Borrower or any of its Affiliates in which the Borrower
or such Affiliate is not restricted hereby from engaging with any other Person.
SECTION 11.13. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY
IN THE CIRCUIT COURT OF THE STATE OF FLORIDA FOR THE COUNTY OF MIAMI DADE OR IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA; PROVIDED
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY OF THE BORROWER MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH PROPERTY MAY BE FOUND. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE CIRCUIT COURT OF THE STATE OF FLORIDA FOR THE
COUNTY OF MIAMI DADE AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. THE BORROWER FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF FLORIDA. THE BORROWER HEREBY EXPRESSLY
-52-
AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 11.14. PROCESS AGENT. If at any time the Borrower ceases to
have a place of business in the United States, the Borrower shall appoint an
agent for service of process (reasonably satisfactory to the Administrative
Agent) located in Miami, Florida and shall furnish to the Administrative Agent
evidence that such agent shall have accepted such appointment for a period of
time ending no earlier than one year after the Commitment Termination Date.
SECTION 11.15. WAIVER OF JURY TRIAL. THE ADMINISTRATIVE AGENT, THE
LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT. EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH
OTHER PROVISION OF EACH OTHER LOAN DOCUMENT) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR EACH OTHER PARTY ENTERING INTO THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT.
-53-
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
ROYAL CARIBBEAN CRUISES LTD.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President & Treasurer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasurer
With a copy to: General Counsel
-54-
COMMITMENT: BANK OF AMERICA, N.A., as Administrative
$245,750,000.00 Agent
PERCENTAGE:
71.077368040% By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Notice:
Gaming & Leisure Group
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
BANK OF AMERICA, N.A., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Lending Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Wire Transfer Instructions:
Bank of America, N.A.
Concord, California
ABA #▇▇▇-▇▇▇-▇▇▇
Account #3750836479
Attention: CCS/Agency Services
Reference: Royal Caribbean Cruises Ltd.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
$50,000,000.00
PERCENTAGE:
14.▇▇▇▇▇▇▇▇▇% By: /s/ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇. ▇▇▇▇▇
Title: Vice President
Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Wire Transfer Instructions:
The Bank of Nova Scotia
New York, New York
ABA #02600 2532
Account #▇▇▇▇▇▇▇
Account Name: Atlanta Agency
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Reference: Royal Caribbean Cruises Ltd.
-56-
COMMITMENT: FIRST UNION NATIONAL BANK
$ 50,000,000.00
PERCENTAGE:
14.461315980% By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
Lending Office:
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 904-489-6095
Wire Transfer Instructions:
First Union National Bank
Charlotte, North Carolina
ABA #▇▇▇▇▇▇▇▇▇
Account #145916-2008
Account Name: Commercial Loan Operations
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Reference: Royal Caribbean Cruises Ltd.
-57-
SCHEDULE I
DISCLOSURE SCHEDULE
VESSELS
---------------------------------------- --------------------------------------------- -------------------------------
VESSEL OWNER FLAG
---------------------------------------- --------------------------------------------- -------------------------------
Sovereign of the Seas Sovereign of the Seas Shipping, Inc. Norwegian
---------------------------------------- --------------------------------------------- -------------------------------
Nordic Empress Nordic Empress Shipping Inc. Liberia
---------------------------------------- --------------------------------------------- -------------------------------
Infinity Infinity Inc. Liberia
---------------------------------------- --------------------------------------------- -------------------------------
Millennium Millennium Inc. Liberia
---------------------------------------- --------------------------------------------- -------------------------------
Radiance of the Sea Radiance of the Seas Inc. Liberia
---------------------------------------- --------------------------------------------- -------------------------------
Explorer of the Seas Explorer of the Seas Inc. Liberia
---------------------------------------- --------------------------------------------- -------------------------------
Monarch of the Seas Monarch of the Seas Inc. Norwegian
---------------------------------------- --------------------------------------------- -------------------------------
Majesty of the Seas Majesty of the Seas Inc. Norwegian
---------------------------------------- --------------------------------------------- -------------------------------
Grandeur of the Seas Grandeur of the Seas Inc. Liberia
---------------------------------------- --------------------------------------------- -------------------------------
Rhapsody of the Seas Rhapsody of the Seas Inc. Norwegian
---------------------------------------- --------------------------------------------- -------------------------------
Enchantment of the Seas Enchantment of the Seas Inc. Norwegian
---------------------------------------- --------------------------------------------- -------------------------------
Vision of the Seas Vision of the Seas Inc. Liberia
---------------------------------------- --------------------------------------------- -------------------------------
Voyager of the Seas Voyager of the Seas Inc. Liberia
---------------------------------------- --------------------------------------------- -------------------------------
Horizon Fantasia Cruising Inc. Liberia
---------------------------------------- --------------------------------------------- -------------------------------
Zenith Zenith Shipping Corp. Liberia
---------------------------------------- --------------------------------------------- -------------------------------
Century Blue Sapphire Marine Inc. Liberia
---------------------------------------- --------------------------------------------- -------------------------------
Galaxy ▇▇▇▇▇ Marine Shipping Inc. Liberia
---------------------------------------- --------------------------------------------- -------------------------------
Mercury Seabrook Maritime Inc. Panamanian
---------------------------------------- --------------------------------------------- -------------------------------
SUBSIDIARIES
---------------------------------------------------------------------------- -----------------------------------------
NAME OF SUBSIDIARY JURISDICTION OF ORGANIZATION
---------------------------------------------------------------------------- -----------------------------------------
Song of Norway Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
Nordic Prince Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
Sun Viking Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
Song of America Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
Sovereign of the Seas Shipping Inc. * Liberia
---------------------------------------------------------------------------- -----------------------------------------
Viking Serenade Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
Nordic Empress Shipping Inc. * Liberia
---------------------------------------------------------------------------- -----------------------------------------
Majesty of the Seas Inc. * Liberia
---------------------------------------------------------------------------- -----------------------------------------
Monarch of the Seas Inc. * Liberia
---------------------------------------------------------------------------- -----------------------------------------
Admiral Management Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
GG Operations Inc. Delaware
---------------------------------------------------------------------------- -----------------------------------------
Island for Science Inc. Indiana
---------------------------------------------------------------------------- -----------------------------------------
Royal Caribbean Management Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
Labadee Investments Ltd. Cayman Islands
---------------------------------------------------------------------------- -----------------------------------------
Societe Labadee Nord, S.A. Haiti
---------------------------------------------------------------------------- -----------------------------------------
Royal Caribbean Cruise Line A/S Norway
---------------------------------------------------------------------------- -----------------------------------------
---------------------------------------------------------------------------- -----------------------------------------
NAME OF SUBSIDIARY JURISDICTION OF ORGANIZATION
---------------------------------------------------------------------------- -----------------------------------------
Royal Caribbean Merchandise Inc. Florida
---------------------------------------------------------------------------- -----------------------------------------
Eastern Steamship Lines Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
Grandeur of the Seas Inc. * Liberia
---------------------------------------------------------------------------- -----------------------------------------
Enchantment of the Seas Inc. * Liberia
---------------------------------------------------------------------------- -----------------------------------------
Rhapsody of the Seas Inc. * Liberia
---------------------------------------------------------------------------- -----------------------------------------
Vision of the Seas Inc. * Liberia
---------------------------------------------------------------------------- -----------------------------------------
Voyager of the Seas Inc. * Liberia
---------------------------------------------------------------------------- -----------------------------------------
Explorer of the Seas Inc.* Liberia
---------------------------------------------------------------------------- -----------------------------------------
Radiance of the Seas Inc.* Liberia
---------------------------------------------------------------------------- -----------------------------------------
Celebrity Cruise Lines Inc. Cayman Islands
---------------------------------------------------------------------------- -----------------------------------------
Celebrity Cruises Holdings Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
Cruise Mar Shipping Holdings Ltd. Liberia
---------------------------------------------------------------------------- -----------------------------------------
Seabrook Maritime Inc. * Liberia
---------------------------------------------------------------------------- -----------------------------------------
▇▇▇▇▇ Marine Shipping Inc. * Liberia
---------------------------------------------------------------------------- -----------------------------------------
Blue Sapphire Marine Inc. * Liberia
---------------------------------------------------------------------------- -----------------------------------------
Fantasia Cruising Inc. * Liberia
---------------------------------------------------------------------------- -----------------------------------------
Cruise Mar Investment Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
Universal Cruise Holdings Limited British Virgin Islands
---------------------------------------------------------------------------- -----------------------------------------
Celebrity Cruises Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
Fourth Transoceanic Shipping Company Limited Liberia
---------------------------------------------------------------------------- -----------------------------------------
Zenith Shipping Corp. * Liberia
---------------------------------------------------------------------------- -----------------------------------------
Mediterranean Blue Sea Holdings Ltd. Liberia
---------------------------------------------------------------------------- -----------------------------------------
Celebrity Cruises (Management) Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
Cruceros Celebrity S.L. Spain
---------------------------------------------------------------------------- -----------------------------------------
Celebrity Travel S.L. Spain
---------------------------------------------------------------------------- -----------------------------------------
Celebrity Cruises (France) SARL France
---------------------------------------------------------------------------- -----------------------------------------
Celebrity Croisieres S.A. Switzerland
---------------------------------------------------------------------------- -----------------------------------------
Celebrity Cruises (Hellas) Ltd. Greece
---------------------------------------------------------------------------- -----------------------------------------
Celebrity Crociere (Italia) SRL Italy
---------------------------------------------------------------------------- -----------------------------------------
Celebrity Cruises (UK) Ltd. U.K.
---------------------------------------------------------------------------- -----------------------------------------
Atlantic Maritime Recruitment Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
Ajax Navigation Corporation Liberia
---------------------------------------------------------------------------- -----------------------------------------
Fifth Transoceanic Shipping Company Limited Liberia
---------------------------------------------------------------------------- -----------------------------------------
Infinity Inc.* Liberia
---------------------------------------------------------------------------- -----------------------------------------
Millennium Inc.* Liberia
---------------------------------------------------------------------------- -----------------------------------------
Serenity Management Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
Royal Celebrity Tours Inc. Delaware
---------------------------------------------------------------------------- -----------------------------------------
Adventure of the Seas Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
White Sand Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
Summit Inc. Liberia
---------------------------------------------------------------------------- -----------------------------------------
* Shipholding companies
EXHIBIT A
FORM OF TERM NOTE
$---------------- -------- ---, -----
----------, ----------
FOR VALUE RECEIVED, the undersigned, Royal Caribbean Cruises Ltd., a
Liberian corporation (the "BORROWER"), promises to pay to the order of
___________________________________ (the "LENDER") on __________, ____ the
principal sum of _______________________________________ DOLLARS ($__________)
or, if less, the aggregate unpaid principal amount of all Loans shown on the
schedule attached hereto (and any continuation thereof) made by the Lender
pursuant to that certain Credit Agreement, dated as of May 18, 2001 (together
with all amendments and other modifications, if any, from time to time
thereafter made thereto, the "CREDIT AGREEMENT"), among the Borrower, BANK OF
AMERICA, N.A., as Administrative Agent, and the various financial institutions
(including the Lender) as are, or shall from time to time become, parties
thereto.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement. Payments of
both principal and interest are to be made in lawful money of the United States
of America in same day or immediately available funds to the account designated
by the Administrative Agent.
This Term Note is a Term Note referred to in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is made
for a statement of the terms and conditions on which the Borrower is permitted
and required to make prepayments and repayments of principal of the Indebtedness
evidenced by this Term Note and on which such Indebtedness may be declared to be
immediately due and payable. Unless otherwise defined, terms used herein have
the meanings provided in the Credit Agreement.
All Loans made by the Lender to the Borrower under the Credit Agreement
and all payments of principal hereof by the Borrower to the Lender shall be
recorded by the Lender and endorsed on the Schedule attached hereto (and any
continuation thereof); PROVIDED that the failure by the Lender to set forth such
Loans, payments and other information on such Schedule shall not in any manner
affect the obligation of the Borrower to repay such Loans in accordance with the
terms thereof.
A-1
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS TERM NOTE HAS BEEN DELIVERED IN THE STATE OF NORTH CAROLINA AND SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF FLORIDA.
ROYAL CARIBBEAN CRUISES LTD.
WITNESS:
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
A-2
SCHEDULE TO EXHIBIT A
LOANS AND PRINCIPAL PAYMENTS
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
Amount of Unpaid
Amount of Principal Principal Notation Made
Date Loan Made Interest Period Repaid Balance Total By
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
A-3
EXHIBIT B
BORROWING REQUEST
Bank of America, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: [Name]
[Title]
ROYAL CARIBBEAN CRUISES LTD.
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to SECTION 2.3 of
the Credit Agreement, dated as of May 18, 2001 (together with all amendments, if
any, from time to time made thereto, the "CREDIT AGREEMENT"), among Royal
Caribbean Cruises Ltd., a Liberian corporation (the "Borrower"), certain
financial institutions and Bank of America, N.A., as Administrative Agent (the
"ADMINISTRATIVE AGENT"). Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided in the Credit
Agreement.
The Borrower hereby requests that a Loan be made in the aggregate
principal amount of $_____ on ___________, _____ [having an Interest Period of
months] or [bearing interest at the Base Rate], and hereby certifies to the
Administrative Agent that, to the best of its knowledge, such amount does not
exceed the Note Repurchase Amount.
The Borrower hereby acknowledges that, pursuant to SECTION 5.2.2 of the
Credit Agreement, each of the delivery of this Borrowing Request and the
acceptance by the Borrower of the proceeds of the Loans requested hereby
constitute a representation and warranty by the Borrower that, on the date of
such Loans (before and after giving effect thereto and to the application of the
proceeds therefrom), all statements set forth in SECTION 5.2.1 are true and
correct in all material respects.
The Borrower agrees that if prior to the time of the Borrowing
requested hereby any matter certified to herein by it will not be true and
correct at such time as if then made, it will immediately so notify the
Administrative Agent. Except to the extent, if any, that prior to the time of
the Borrowing requested hereby the Administrative Agent shall receive written
notice to the contrary from the Borrower, each matter certified to herein shall
be deemed once again to be certified as true and correct at the date of such
Borrowing as if then made.
Please wire transfer the proceeds of the Borrowing to the accounts of
the following persons at the financial institutions indicated respectively:
B-1
PERSON TO BE PAID
AMOUNT TO BE ----------------- NAME, ADDRESS, ETC.
TRANSFERRED NAME ACCOUNT NO. OF TRANSFEREE LENDER
----------- ---- ---------- --------------------
$
------------ ---------------- ----------------- ----------------------
----------------------
Attention:
------------
$
------------ ---------------- ----------------- ----------------------
----------------------
----------------------
Attention:
------------
Balance of The Borrower
such proceeds ---------------- ----------------------
----------------------
----------------------
Attention:
---------------
The Borrower has caused this Borrowing Request to be executed and
delivered, and the certification and warranties contained herein to be made, by
its duly Authorized Officer this ___ day of ___________, _____.
ROYAL CARIBBEAN CRUISES LTD.
By:
-----------------------------------
Name:
Title:
B-2
EXHIBIT C
INTEREST PERIOD NOTICE
Bank of America, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: [Name]
[Title]
ROYAL CARIBBEAN CRUISES LTD.
Gentlemen and Ladies:
This Interest Period Notice is delivered to you pursuant to SECTION 2.4
of the Credit Agreement, dated as of May 18, 2001 (together with all amendments,
if any, from time to time made thereto, the "CREDIT AGREEMENT"), among Royal
Caribbean Cruises Ltd., a Liberian corporation (the "BORROWER"), certain
financial institutions and Bank of America, N.A., as Administrative Agent (the
"ADMINISTRATIVE AGENT"). Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided in the Credit
Agreement.
The Borrower hereby requests that on , ____,
-------------------------
(1) The Borrower hereby gives notice to the Administrative Agent of
the following selection of a type of Loan and Interest Period:
INTEREST AGGREGATE DATE OF
TYPE OF LOAN PERIOD AMOUNT LOAN
------------ -------- --------- --------
(check one)
Base Rate Loan_____
LIBO Rate Loan _____
(2) be continued as Loans having an Interest Period of _____ months.
The Borrower has caused this Interest Period Notice to be executed and
delivered by its Authorized officer this __________ day of ___________, _____.
ROYAL CARIBBEAN CRUISES LTD.
By:
-----------------------------
Title:
▇-▇
▇▇▇▇▇▇▇ ▇-▇
[Form of Opinion of Counsel to the Borrower]
_______________, 2000
To the Lenders party to the
Credit Agreement referred to
below and to Bank of America, N.A.,
as Administrative Agent
Gentlemen:
I am the General Counsel of Royal Caribbean Cruises Ltd. ("RCCL") and
have acted in that capacity in connection with the Credit Agreement dated as of
May ___, 2001 (the "Credit Agreement") between RCCL, the Lenders referred to
therein and Bank of America, N.A., as Administrative Agent.
In connection with the opinions expressed herein, I have examined
originals or copies certified or otherwise identified to my satisfaction of such
agreements, documents, certificates, and other statements of such governmental
officials and corporate officers and other representatives of the corporations
referred to herein and other papers as I have deemed relevant and necessary as a
basis for such opinions. In making such examinations I have assumed the
genuineness of all signatures and the conformity with the originals of all
documents submitted to me as copies. As to facts material to my opinion, I have
relied on the representations, warranties and statements made in or pursuant to
the Credit Agreement and the other documents referred to herein and upon
certificates of public officials and certificates and other written or oral
statements of officers and other representatives of the corporations named
herein.
Unless otherwise defined herein, the capitalized terms used herein
shall have the meanings assigned to them in the Credit Agreement.
Based on the foregoing and subject to the qualifications and exceptions
expressed herein, it is my opinion that:
(i) no registration or other official action in the State of
Florida is required in order to render the Credit Agreement or any of
the other Loan Documents enforceable against RCCL; and
(ii) to the extent that their respective incomes are
excludable from United States Income Taxation pursuant to Section 883
of the Internal Revenue Code, none of RCCL and its Principal
Subsidiaries is, or under current law will be, taxable on its income
under the Revenue Code of the State of Florida. In addition, RCCL is
not required, as a matter of the law of the State of Florida, to
withhold income tax with respect to any interest or principal payments
it is or may be required to make under the Loan Documents.
D-1-1
The opinions expressed above are subject to the following further
qualifications: (i) the effect on the enforceability of the Loan Documents or
insolvency, bankruptcy, moratorium, or reorganization laws or other similar laws
affecting generally the enforcement of creditors' rights, (ii) general equity
principles, (iii) the possibility that certain provisions of the agreements may
not be specifically enforceable, (iv) no opinion is expressed herein as to the
choice of law provisions contained in the Agreements, (v) no opinion is
expressed herein as to the necessity of any of the Lenders to be qualified to do
business in the State of Florida or to make any filings in connection therewith
and (vi) no opinion is expressed herein as to laws other than the laws of the
State of Florida.
This opinion is solely for the benefit of the Lenders and the
Administrative Agent and is not to be relied on by any other person.
Very truly yours,
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[Form of Opinion of Liberian Counsel to the Borrower]
______________, 2000
To the Lenders party to the
Credit Agreement referred to
below and to Bank of America, N.A.,
as Administrative Agent
Gentlemen:
We have acted as legal counsel on matters of Liberian law to Royal
Caribbean Cruises Ltd., a Liberian corporation (the "Borrower"), in connection
with (a) a Credit Agreement dated as of May ___, 2001 (the "Credit Agreement")
and made between (1) the Borrower, (2) the Lenders (as defined therein) as
several lenders, and (3) Bank of America, N.A. (the "Administrative Agent") in
respect of a term loan facility in the maximum aggregate amount of $575,000,000,
and (b) the Term Notes referred to in the Credit Agreement (collectively,
together with the Credit Agreement, the "Documents").
With reference to the Documents you have asked for our opinion on the
matters set forth below. In rendering this opinion we have examined executed
copies of the Documents. We have also examined originals or photostatic copies
or certified copies of all such agreements and other instruments, certificates
by public officials and certificates of officers of the Borrower as are relevant
and necessary and relevant corporate authorities of the Borrower. We have
assumed with your approval, the genuineness of all signatures, the authenticity
of all documents submitted to us as originals and the conformity with the
original documents of all documents submitted to us as copies, the power,
authority and legal right of the parties to the Documents other than the
Borrower to enter into and perform their respective obligations under each of
the Documents and the due authorization of the execution of the Documents by all
parties thereto other than the Borrower. We have further assumed the due
execution and delivery of each of the Documents, due compliance with all matters
of, and the validity and enforceability of the Documents, under the respective
laws governing each of the Documents other than the laws of the Republic of
Liberia, in respect of which we are opining.
As to questions of fact material to this opinion, we have, when
relevant facts were not independently established, relied upon certificates of
public officials and of officers or representatives of the Borrower.
We are attorneys admitted to practice in the State of New York and do
not purport to be experts in the laws of any other jurisdiction. Insofar as our
opinion relates to the law of the Republic of Liberia, we have relied on
opinions of counsel in Liberia rendered in transactions which we consider to
afford a satisfactory basis for such opinion, and upon our independent
examinations of the Liberian Corporation Act of 1948 (Chapter 1 of Title 4 of
D-2-1
the Liberian Code of Laws of 1956, effective March 1, 1958 as amended to July,
1973), the Liberian Business Corporation Act of 1976 (Part 1 of Title V of the
Liberian Code of Laws (Revised) of 1976, effective January 2, 1977) and the
Liberian Maritime Law (Chapter 3 of Title 22 of the Liberian Code of Laws as
amended) as contained in pamphlets delivered to us by Liberian Corporation
Services Inc. (who have today advised us that to the best of their knowledge
such laws remain in effect on the date hereof) and our knowledge and
interpretation of analogous laws in the United States. We express no opinion as
to the laws of any other jurisdiction by which any of the Documents are
expressed to be governed, and we have assumed with your approval that each of
the Documents is valid, legally binding and enforceable under the law by which
it is expressed to be governed. In rendering our opinion as to the valid
existence in good standing of each of the Corporations, we have relied on
Certificates of Good Standing issued by order of the Minister of Foreign Affairs
of the Republic of Liberia on ________________________ , ______________.
Based upon and subject to the foregoing and having regard to the legal
considerations which we deem relevant, we are of the opinion that, insofar as
Liberian law is concerned:
1. The Borrower is a corporation duly incorporated, validly existing under
the aforementioned Business Corporation Act and in good standing under
the laws of the Republic of Liberia and has full power to enter into
and perform its obligations under the Documents;
2. The Borrower has full right, power and authority to enter into, execute
and deliver the Documents and to perform each and all of the matters
and things provided for therein;
3. Each of the Documents has been executed and delivered by a duly
authorized signatory of the Borrower and constitutes the legal, valid
and binding obligations of the Borrower enforceable against the
Borrower in accordance with its terms;
4. Neither the execution of, nor the performance of its obligations under,
any of the Documents by the Borrower will contravene any existing
applicable law, regulation or restrictions of the Republic of Liberia
and no consents or approvals of, or exemptions by any Liberian
governmental or public bodies and authorities are required in
connection with the execution and delivery by the Borrower of the
Documents;
5. Neither the execution nor delivery of any of the Documents, nor the
transactions contemplated therein, nor compliance with the terms and
conditions thereof, will contravene any provisions of Liberian law or
regulation or violate any provisions of the Articles of Incorporation
or the Bylaws of the Borrower;
6. It is not necessary to file, record or register any of the Documents or
any instrument relating thereto or effect any other official action in
any public office or elsewhere in the Republic of Liberia to render any
such document enforceable against the Borrower;
7. Assuming that no more than 25% of the total combined voting power and
no more than 25% of the total value of the outstanding equity stock of
the Borrower is owned, directly or indirectly, by persons resident in
Liberia and that the Borrower does not engage in Liberia in the pursuit
D-2-2
of gain or profit with a degree of continuity or regularity, the
Borrower is not required or entitled under any existing applicable law
or regulation of the Republic of Liberia to make any withholding or
deduction in respect of any tax or otherwise from any payment which it
is or may be required to make under any of the Documents;
8. Assuming none of the Documents having been executed in Liberia, no
stamp or registration or similar taxes or charges are payable in the
Republic of Liberia in respect of any of the Documents or the
enforcement thereof in the Courts of Liberia other than (i) customary
court fees payable in litigation in the Courts of Liberia and (ii)
nominal documentary stamp taxes if the Documents are ever submitted to
a Liberian court;
9. Assuming that the shares of the Borrower and the Principal Subsidiaries
are not owned, directly or indirectly, by the Republic of Liberia or
any other sovereign under Liberian law, neither the Borrower nor any of
the Principal Subsidiaries nor the property or assets of any of them
(including in the case of the Principal Subsidiaries any of the Vessels
and their earnings and insurances and requisition compensation) is
immune from the institution of legal proceedings or the obtaining or
execution of a judgment in the Republic of Liberia; and
10. Under Liberian law the choice by the Borrower of the law of the State
of Florida to govern the Credit Agreement and the Term Notes is a valid
choice of law and the irrevocable submission thereunder by the Borrower
to the jurisdiction of the Circuit Court of the State of Florida for
the County of Miami Dade and for the United States District Court for
the Southern District of Florida is a valid submission to such courts.
In the event a judgment of such courts against the Borrower was
obtained after service of process in the mariner specified in the
Credit Agreement, the same would be enforced by the courts of the
Republic of Liberia without further review on the merits unless: (i)
the judgment was obtained by fraud; or (ii) the judgment was given in a
manner contrary to natural justice or the judgment was given in a
manner contrary to the public policy of the Republic of Liberia; or
(iii) the judgment was in a case in which the defendant did not appear
or in which an authorized person did not appear in such defendant's
behalf; or (iv) the judgment was not for a specific ascertained sum of
money; or (v) the judgment was not final and conclusive in accordance
with the laws of the jurisdiction in which the judgment was obtained.
We qualify our opinion to the extent that (i) the enforceability of the
rights and remedies provided for in the Documents (a) may be limited by
bankruptcy, reorganization, insolvency, moratorium and other similar laws
affecting generally the enforcement of creditors' rights and (b) is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), including application by a
court of competent jurisdiction of principles of good faith, fair dealing,
commercial reasonableness, materiality, unconscionability and conflict with
public policy or similar principles, and (ii) while there is nothing in the laws
of the Republic of Liberia that prohibits a Liberian corporation from submitting
to the jurisdiction of a forum other than Liberia, the enforceability of such
submission to jurisdiction provisions is not dependent upon Liberian law and
such provisions may not be enforceable under the laws of a particular
jurisdiction.
D-2-3
This opinion is issued solely for the benefit of the Lender and the
Administrative Agent, may be relied upon solely by the Lenders and the
Administrative Agent in connection with the transaction described herein and is
not to be made available to, or relied upon by, any other person, firm or
entity.
Very truly yours,
D-2-4
EXHIBIT E
LENDER ASSIGNMENT AGREEMENT
To: Royal Caribbean Cruises, Ltd.
To: Bank of America, N.A.,
as the Administrative Agent
ROYAL CARIBBEAN CRUISES LTD.
Gentlemen and Ladies:
We refer to CLAUSE (B) of SECTION 11.11.1 of the Credit Agreement,
dated as of May ___, 2001 (together with all amendments and other modifications,
if any, from time to time thereafter made thereto, the "CREDIT AGREEMENT"),
among Royal Caribbean Cruises, Ltd., a Liberian corporation (the "BORROWER"),
the various financial institutions (the "LENDERS") as are, or shall from time to
time become, parties thereto, and Bank of America, N.A., as administrative agent
(the "ADMINISTRATIVE AGENT") for the Lenders. Unless otherwise defined herein or
the context otherwise requires, terms used herein have the meanings provided in
the Credit Agreement.
This agreement is delivered to you pursuant to CLAUSE (B) of SECTION 11.11.1 of
the Credit Agreement and also constitutes notice to each of you, pursuant to
CLAUSE (A) of SECTION 11.11.1 of the Credit Agreement, of the assignment and
delegation to __________________________ (the "Assignee") of __% of the Loans
and Commitment of ________________________ (the "ASSIGNOR") outstanding under
the Credit Agreement on the date hereof. After giving effect to the foregoing
assignment and delegation, the Assignor's and the Assignee's Percentages for the
purposes of the Credit Agreement are set forth opposite such Person's name on
the signature pages hereof.
Pursuant to SECTION 11.11 of the Credit Agreement, an assignment fee of
$3,500 shall be payable by the Assignor to the Administrative Agent upon the
effectiveness of any such assignment (including, but not limited to, an
assignment by a Lender to another Lender).
The Assignee hereby acknowledges and confirms that it has received a
copy of the Credit Agreement and the exhibits related thereto, together with
copies of the documents which were required to be delivered under the Credit
Agreement as a condition to the making of the Loans thereunder. The Assignee
further confirms and agrees that in becoming a Lender and in making its
Commitment and Loans under the Credit Agreement, such actions have and will be
made without recourse to, or representation or warranty by the Administrative
Agent.
Except as otherwise provided in the Credit Agreement, effective as of
the date of acceptance hereof by the Administrative Agent
(a) the Assignee
E-1
(i) shall be deemed automatically to have become a
party to the Credit Agreement, have all the rights and
obligations of a "Lender" under the Credit Agreement and the
other Loan Documents as if it were an original signatory
thereto to the extent specified in the second paragraph
hereof;
(ii) agrees to be bound by the terms and conditions
set forth in the Credit Agreement and the other Loan Documents
as if it were an original signatory thereto; and
(b) the Assignor shall be released from its obligations under
the Credit Agreement and the other Loan Documents to the extent
specified in the second paragraph hereof.
The Assignor and the Assignee hereby agree that the [Assignor]
[Assignee] will pay to the Administrative Agent the processing fee referred to
in SECTION 11.11.1 of the Credit Agreement upon the delivery hereof.
The Assignee hereby advises each of you of the following administrative
details with respect to the assigned Loans and Commitment and requests the
Administrative Agent to acknowledge receipt of this document:
(A) Address for Notices:
Institution Name:
Attention:
Domestic Office:
Telephone:
Facsimile:
Telex (Answerback)
LIBOR Office:
Telephone:
Facsimile:
Telex (Answerback):
(B) Payment Instructions:
E-2
The Assignee agrees to furnish the tax form required by last paragraph
of SECTION 4.5 (if so required) of the Credit Agreement no later than the date
of acceptance hereof by the Administrative Agent.
This Agreement may be executed by the Assignor and Assignee in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
ADJUSTED PERCENTAGE [ASSIGNOR]
-------------------
Commitment
and
Loans: %
------
By:
-------------------------------
Title:
PERCENTAGE [ASSIGNEE]
----------
Commitment
and
Loans: %
------
By:
-------------------------------
Title:
Accepted and Acknowledged this
___ day of ___________, _____.
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
-----------------------------------
Title:
E-3
EXHIBIT F
FORM OF COMMITMENT INCREASE AGREEMENT
Date: ___________________
Bank of America, N.A.,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Royal Caribbean Cruises Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of May 18, 2001 (as amended,
restated, modified, supplemented or renewed from time to time, the "CREDIT
AGREEMENT") among Royal Caribbean Cruises Ltd. (the "BORROWER"), the Lenders
referred to therein, and Bank of America, N.A., as administrative agent (in such
capacity, the "ADMINISTRATIVE AGENT"). Terms defined in the Credit Agreement are
used herein as therein defined.
This Commitment Increase Agreement is made and delivered pursuant to
SECTION 2.7 of the Credit Agreement.
Subject to the terms and conditions of SECTION 2.7 of the Credit
Agreement, _______________________________ (the "INCREASING LENDER") will
increase its Commitment to an amount equal to $___________, on the Increased
Commitment Date applicable to it. The Increasing Lender hereby confirms and
agrees that with effect on and after such Increased Commitment Date, the
Commitment of the Increasing Lender shall be increased to the amount set forth
above, and the Increasing Lender shall have all of the rights and be obligated
to perform all of the obligations of a Lender under the Credit Agreement with a
Commitment in the amount set forth above.
Effective the on the Increased Commitment Date applicable to it, the
Increasing Lender accepts and assumes from the assigning Lenders, without
recourse, such assignment of Loans as shall be necessary to effectuate the
adjustments in the Percentages of the Lenders contemplated by SECTION 2.7 of the
Credit Agreement.
This Commitment Increase Agreement shall constitute a Loan Document
under the Credit Agreement.
THIS COMMITMENT INCREASE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF FLORIDA, NOTWITHSTANDING ITS
EXECUTION OUTSIDE SUCH STATE.
F-1
IN WITNESS WHEREOF, the Increasing Lender has caused this Commitment
Increase Agreement to be duly executed and delivered in _____________,
______________, by its proper and duly authorized officer as of the day and year
first above written.
[INCREASING BANK]
By:
-----------------------------------------
Title:
--------------------------------------
CONSENTED TO as of :
--------------------
ROYAL CARIBBEAN CRUISES LTD.
By:
------------------------------------
Title:
---------------------------------
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
------------------------------------
Title:
---------------------------------
F-2
EXHIBIT G
FORM OF ADDED LENDER AGREEMENT
Date: ___________________
Bank of America, N.A.
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Royal Caribbean Cruises Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of May 18, 2001 (as amended,
restated, modified, supplemented or renewed from time to time, the "CREDIT
AGREEMENT") among Royal Caribbean Cruises Ltd. (the "Borrower"), the Lenders
referred to therein, and Bank of America, N.A., as administrative agent (in such
capacity, the "ADMINISTRATIVE AGENT"). Terms defined in the Credit Agreement are
used herein as therein defined.
This Added Lender Agreement is made and delivered pursuant to SECTION
2.7 of the Credit Agreement.
Subject to the terms and conditions of SECTION 2.7 of the Credit
Agreement, _________________________ (the "ADDED LENDER") will become a party to
the Credit Agreement as a Lender, with a Commitment equal to $___________, on
the Increased Commitment Date applicable to it. The Added Lender hereby confirms
and agrees that with effect on and after such Increased Commitment Date, the
Added Lender shall be and become a party to the Credit Agreement as a Lender and
have all of the rights and be obligated to perform all of the obligations of a
Lender thereunder with a Commitment in the amount set forth above.
Effective on the Increased Commitment Date applicable to it, the Added
Lender accepts and assumes from the assigning Lenders, without recourse, such
assignment of Loans as shall be necessary to effectuate the adjustments in the
Percentages of the Lenders contemplated by SECTION 2.7 of the Credit Agreement.
G-1
The following administrative details apply to the Added Lender:
(A) LENDING OFFICE(S):
-----------------
Lender name:
-----------------------------------
Address:
-----------------------------------
Attention:
-----------------------------------
Telephone: ( )
-----------------------------------
Facsimile: ( )
-----------------------------------
Lender name:
-----------------------------------
Address:
-----------------------------------
Attention:
-----------------------------------
Telephone: ( )
-----------------------------------
Facsimile: ( )
-----------------------------------
(B) NOTICE ADDRESS:
--------------
Lender name:
-----------------------------------
Address:
-----------------------------------
Attention:
-----------------------------------
Telephone: ( )
-----------------------------------
Facsimile: ( )
-----------------------------------
(C) PAYMENT INSTRUCTIONS:
--------------------
Account No.:
-----------------------------------
At:
-----------------------------------
Reference:
-----------------------------------
Attention:
-----------------------------------
This Added Lender Agreement shall constitute a Loan Document under the
Credit Agreement.
G-2
THIS ADDED LENDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF FLORIDA, NOTWITHSTANDING ITS EXECUTION
OUTSIDE SUCH STATE.
IN WITNESS WHEREOF, the Added Lender has caused this Added Lender
Agreement to be duly executed and delivered in _____________, ______________, by
its proper and duly authorized officer as of the day and year first above
written.
[ADDED LENDER]
By:
----------------------------------
Title:
-------------------------------
CONSENTED TO as of :
---------------------
ROYAL CARIBBEAN CRUISES LTD.
By:
-----------------------------------
Title:
--------------------------------
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
-----------------------------------
Title:
--------------------------------
G-3